Common use of Exceptions Clause in Contracts

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs).

Exceptions. The obligations imposed Notwithstanding the forgoing, a Stockholder will not be required to comply with Section 4(b)(i) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (A) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (I) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aII) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (III) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms and (IV) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (B) The Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company; (C) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is limited to the amount of consideration paid to such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation); (D) liability shall be limited to such Stockholder’s Affiliates pro rata share (determined in proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (E) upon the consummation of the Proposed Sale, (I) each Preferred Holder and each holder of Common Shares will receive the same form of consideration for their Common Shares and Preferred Shares, (II) with respect to the Preferred Shares, each Preferred Holder will receive the same amount of consideration per Preferred Share, (III) each holder of Common Shares will receive the same amount of consideration per Common Share, and (IV) unless the holders of at least seventy-five percent (75%) of the Preferred Shares elect otherwise by written notice given to the Company at least fifteen (15) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Shares and Common Shares shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Shares and Common Shares on the basis of the Recipient’s relative liquidation preferences to which the holders of Preferred Shares and the holders of Common Stock are entitled in a Deemed Liquidation Event (or any assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; and (cF) becomes known subject to clause (E) above, requiring the same form of consideration to be received by the holders of the Company’s Common and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach form and amount of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information that must Proposed Sale, all holders of such capital stock will be so disclosed (with such duty of cooperation not requiring given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and Notwithstanding anything to the extent thatcontrary set forth in Section 5.03(a) or any other provision of this Agreement, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates at any time prior to obtaining the receipt Required Stockholder Approval, in response to an unsolicited, bona fide written Acquisition Proposal received after the date of the Confidential Information this Agreement that is not withdrawn and did not arise from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no in connection with a material breach of the Recipient’s obligations set forth in this Section 5.03, the Company may: (i) furnish information in response to a request therefor (including nonpublic information regarding the Company or any of its Affiliates’Subsidiaries) obligations hereunder, known to the publicPerson who made such Acquisition Proposal or its Representatives; (c) becomes known provided that such information has previously been made available to, or is made available to, Parent prior to or substantially concurrently with the time such information is made available to such Person; and provided, further, that, prior to furnishing any such information, Parent receives from the Company an executed confidentiality agreement between the Company and the Person making such Acquisition Proposal containing terms that are not less restrictive in the aggregate to the Recipient or Recipient’s Affiliates from sources other Person making such Acquisition Proposal than the Discloser terms in the Confidentiality Agreement are on Parent and additional terms that expressly permit the Company to comply with the terms of this Section 5.03; and (ii) participate in any discussions or Discloser’s Affiliates under circumstances not involving negotiations with any breach of such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall action described in clauses (i) give or (ii) above, (A) the Discloser Board of Directors determines in good faith (I) after consultation with its outside legal counsel and its independent financial advisor of nationally recognized reputation, that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (II) after consultation with its outside legal counsel, that failure to take such action described in clauses (i) or (ii) above, as much prior applicable, would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Delaware Law; and (B) the Company has delivered to Parent written notice thereof as is reasonably practicable so that advising Parent of the Discloser may seek such protective orders or other confidentiality protection as it, Board of Directors’ determination pursuant to the foregoing clause (A) and the Company’s intention to take the action described in its sole discretion and at its sole expense, may elect, clauses (i) and (ii) reasonably cooperate(s) above; provided that only one such notice need be given with the Discloser in protecting such confidential respect to any specific Acquisition Proposal or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient amended or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)modified Acquisition Proposal.

Exceptions. The obligations imposed by section 8(b(1) hereof shall not applySubject to Section 12(B)(1)(c), or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt Board of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itDirectors, in its sole discretion discretion, may exempt a Person from the limitation on a Person Beneficially Owning Class A Preferred Stock in excess of the Ownership Limit if the Board of Directors obtains such representations and at undertakings from such Person as are reasonably necessary to ascertain that no individual's Beneficial Ownership or Constructive Ownership of such Class A Preferred Stock will violate the Ownership Limit or that any such violation will not cause the Corporation to fail to qualify as a REIT under the Code, and agrees that any violation of such representations or undertaking (or other action which is contrary to the restrictions contained in Section 12(B) of these Articles Supplementary) or attempted violation will result in such Class A Preferred Stock being transferred to a Trust in accordance with Section 12(B)(2) of these Articles Supplementary. (2) Subject to Section 12(B)(1)(c), the Board of Directors, in its sole expensediscretion, may elect, and (ii) reasonably cooperate(s) with exempt a Person from the Discloser limitation on a Person Constructively Owning Class A Preferred Stock in protecting such confidential or proprietary nature excess of the Confidential Information Ownership Limit if such Person does not and represents that must be so disclosed it will not own, actually or Constructively, an interest in a tenant of the Corporation (or a tenant of any entity owned in whole or in part by the Corporation) that would cause the Corporation to own, actually or Constructively more than a 9.8% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Corporation obtains such representations and undertakings from such Person as are reasonably necessary to ascertain this fact and agrees that any violation or attempted violation will result in such Class A Preferred Stock being transferred to a Trust in accordance with Section 12(B)(2) of these Articles Supplementary. Notwithstanding the foregoing, the inability of a Person to make the certification described in this Section 12(I)(2) shall not prevent the Board of Directors, in its sole discretion, from exempting such duty Person from the limitation on a Person Constructively Owning Class A Preferred Stock in excess of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate Ownership Limit if the Board of Directors determines that the resulting application of Section 856(d)(2)(B) of the Code would affect the characterization of less than 0.5% of the gross income (as such term is used in Section 856(c)(2) of the Code and analogous provisions of applicable state law) of the Corporation in any litigation taxable year, after taking into account the effect of this sentence with respect to all other Class A Preferred Stock to which this sentence applies. (3) Prior to granting any exception pursuant to Sections 12(I)(1) or incur more than de minimis out-of-pocket costs)(2) of these Articles Supplementary, the Board of Directors may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation's status as a REIT.

Exceptions. The obligations imposed Notwithstanding the forgoing, a Stockholder will not be required to comply with Section 3.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company; (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (d) liability shall be limited to such Stockholder’s Affiliates pro rata share (determined in proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale, (i) each holder of each series of the Company’s Preferred Stock and each holder of Common Stock will, subject to Section 3.1(g), receive the same form of consideration for their shares of Common Stock and Preferred Stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock, and (iv) unless the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class on an as-converted basis, elect otherwise by written notice given to the Company at least ten (10) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipient’s (or any relative liquidation preferences to which the holders of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach each respective series of any confidentiality obligation between such source Preferred Stock and the Discloser or Discloser’s affiliatesholders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Certificate; and (df) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference subject to the Discloser’s Confidential Information; or clause (e) is required above, requiring the same form of consideration to be disclosed received by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature holders of the Confidential Information that must Company’s Common Stock and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be so disclosed (with received as a result of the Proposed Sale, all holders of such duty of cooperation not requiring capital stock will be given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Shareholder will not be required to comply with Subsection 2.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Shareholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Shareholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the Recipient acquirer and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (other than a breach by any Shareholder of any identical representations, warranties and covenants provided by all Shareholders with respect to the Company and not with respect to themselves, in which case the Shareholder shall be liable for its pro rata share of the damages resulting from such breach, and except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any amount paid out of escrow in respect of a breach by the breaching Shareholder of one of its representations and warranties with respect to itself); (c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any amount paid out of escrow in respect of a breach by the breaching Shareholder of one of its representations and warranties with respect to itself), and subject to the provisions of the Amended Articles related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale; and (d) upon the consummation of the Proposed Sale, each holder of each class or series of the Company’s Affiliates share capital will receive the same form and amount of consideration for their shares of such class or series as is set forth in the Amended Articles in effect immediately prior to the receipt consummation of the Confidential Information from Proposed Sale; provided, however, that, notwithstanding the Discloser foregoing, if the consideration to be paid in exchange for the Shares pursuant to this Subsection 2.3(d) includes any securities and due receipt thereof by any Shareholder would require under applicable law (x) the registration or Discloser’s Affiliates; qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (by) wasthe provision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in either Regulation D promulgated under the Securities Act of 1933 or NI 45-106, or becomes through no breach in either case, as amended, the Company may cause to be paid to any such Shareholder in lieu thereof, against surrender of the Recipient’s (or any of its Affiliates’) obligations hereunderShares which would have otherwise been sold by such Shareholder, known an amount in cash equal to the public; fair value (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed as determined in good faith by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (eCompany) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with securities which such duty Shareholder would otherwise receive as of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate date of the issuance of such securities in any litigation or incur more than de minimis out-of-pocket costs)exchange for the Shares.

Exceptions. The obligations imposed Notwithstanding anything in this Agreement to the contrary, at any time prior to, but not after, the approval and adoption of this Agreement by section 8(b) hereof the Company’s stockholders, the Company, directly or indirectly through its Representatives, may, as long as the Company, its Subsidiaries and their Representatives shall not applyhave breached or taken any action inconsistent with Section 6.03(a), (i) engage in negotiations or shall cease discussions with any Third Party and its Representatives that has made after the date of this Agreement a Company Acquisition Proposal that the Board of Directors of the Company reasonably believes constitutes or would reasonably be expected to applylead to a Superior Proposal, (ii) furnish to any Confidential Information if such Third Party or when, and its Representatives non-public information relating to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (Company or any of its Affiliates’) obligations hereunder, known Subsidiaries or afford access to the public; business, properties, assets, books or records of the Company or any of its Subsidiaries to such Third Party, in each case pursuant to a customary confidentiality agreement (cwhich confidentiality agreement shall not prohibit the Company or its Subsidiaries from providing any information to Parent required by this Section 6.03) becomes known with such Third Party with terms no less favorable to the Recipient Company than those contained in the Confidentiality Agreement (and in any event, which includes a customary standstill provision); provided, however, that all such information (to the extent that such information has not been previously provided or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (dmade available to Parent) is independently developed by provided or made available to Parent prior to or substantially concurrently with the Recipient time it is provided or the Recipient’s Affiliatesmade available to such Third Party, without any use of or reference subject to the Discloser’s Confidential Information; or (e) is required right of the Company to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making withhold information where such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall would contravene any Applicable Law and (iii) take any nonappealable, final action that any court of competent jurisdiction orders the Company to take, in each case referred to in the foregoing subclauses, (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with only if the Discloser in protecting such confidential or proprietary nature Board of Directors of the Confidential Information Company determines in good faith, after consultation with outside legal counsel and its financial advisors, that must the failure to take such action could reasonably be determined to be inconsistent with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Board of Directors of the Company from (x) complying with Rule 14e-2(a) under the 1934 Act with regard to a Company Acquisition Proposal so disclosed long as any action taken or statement made to so comply is consistent with this Section 6.03, (y) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Board of Directors of the Company, after receipt of advice from its outside counsel, failure to so disclose could reasonably be determined to be inconsistent with such duty its fiduciary duties or Applicable Law, or (z) issuing a “stop, look and listen” disclosure or similar communication of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)type contemplated by Rule 14d-9(f) under the 1934 Act.

Exceptions. The obligations imposed by section 8(bNotwithstanding the restrictions set forth in Sections 2(a) hereof shall not applyand 2(b), or shall cease to apply, to any Confidential Information if or when, and to each of the extent that, such Confidential Information: Locked-up Shareholders may (a) was known (subject to the Recipient or MTN Preferential Arrangements and the Recipient’s Affiliates prior Management Preferential Arrangements) participate in the Offering and the Over-Allotment Option and may transfer its Subject Shares to the receipt of underwriters pursuant to the Confidential Information from the Discloser or Discloser’s AffiliatesUnderwriting Agreement; and (b) was, or becomes through no breach of subject to any other lock-up restrictions agreed to by that Locked-up Shareholder with the Recipient’s (Underwriters in connection with the Offering or any other Registered Offering, at any time after the Offering transfer its Subject Shares: ​ (i) to any beneficiary of its Affiliates’) obligations hereundersuch Locked-up Shareholder pursuant to a will, known other testamentary document or intestate succession to the public; (c) becomes known to the Recipient legal representatives, heirs, beneficiaries or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach immediate family members of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processLocked-up Shareholder, provided that the Recipient donee or donees, beneficiary or beneficiaries, heir or heirs or legal representatives thereof execute an Accession Agreement and agree to be bound by the terms of this Agreement applicable to such Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (ii) to any trust, partnership, limited liability company or other entity for the direct or indirect benefit of such Locked-up Shareholder or the Recipient’s Affiliate(simmediate family of such Locked-up Shareholder, provided that the trustee of the trust or the partnership or the limited liability company or other entity executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (iii) making to any immediate family member or other dependent, provided that the transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) give the Discloser as much prior notice thereof as is reasonably practicable so through (iii) above, provided that the Discloser may seek transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such protective orders Locked-up Shareholder; (v) as collateral in accordance with and subject to the terms and conditions of a loan agreement and any related pledge and security agreements, and following any subsequent transfer upon foreclosure on such collateral Subject Shares pledged in accordance with and subject to the terms and conditions of such loan agreement and any related pledge and security agreements, provided that each applicable lender party that forecloses on such collateral Subject Shares shall execute an Accession Agreement and agree to be bound by the terms of this Agreement applicable to such Locked-up Shareholder; provided, however, that if a transfer in accordance with this section (v) occurs, the Locked-up Shareholder shall provide the Company prior written notice informing it of any public filing, report or announcement made by or on behalf of the Locked-up Shareholder with respect thereto, and provided further that if such Locked-up Shareholder is required to file a report under the Exchange Act during the Lock-up Period, such Locked-up Shareholder shall include a statement in any such report to the effect that such transfer is in connection with such pledge; (vi) pursuant to an order of a court or regulatory agency or pursuant to a qualified domestic order or in connection with a divorce settlement, ​ provided that the transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such Locked-up Shareholder (to the extent permissible by law), and provided further that, if such Locked-up Shareholder is required to file a report under the Exchange Act, such Locked-up Shareholder shall include a statement in such report to the effect that the filing relates to the transfer of securities pursuant to an order of a court or regulatory agency or to comply with any regulations related to the ownership of Shares unless such a statement would be prohibited by any applicable law, regulation or order of a court or regulatory authority; (vii) to the Company or its Affiliates upon death, disability or termination of employment, in each case, of such Locked-up Shareholder; (viii) to the Company (A) pursuant to the exercise, in each case on a “cashless” or “net exercise” basis, of any option expiring during the Lock-up Period to purchase Shares granted by the Company pursuant to any employee benefit plans or arrangements described in the Pricing Disclosure Package and the Prospectus (each as defined in the Underwriting Agreement), where any Shares received by such Locked-up Shareholder upon any such exercise will be subject to the terms of this Agreement, or (B) for the purpose of satisfying any taxes (including estimated taxes) due as a result of the exercise of any option expiring during the Lock-up Period to purchase Shares or the vesting or settlement of any restricted stock or restricted stock unit awards granted by the Company pursuant to employee benefit plans or arrangements described in the Pricing Disclosure Package and the Prospectus (each as defined in the Underwriting Agreement), in each case on a “cashless,” “net exercise” or “net settled” basis, where any Shares received by such Locked-up Shareholder upon any such exercise or vesting or settlement will be subject to the terms of this Agreement, provided that any filing under Section 16(a) of the Exchange Act in connection with such transfer shall indicate the reason for such disposition and that such transfer of Shares was solely to the Company; (ix) pursuant to a bona fide third-party tender offer, merger, consolidation or other confidentiality protection as itsimilar transaction made to all holders of the Shares involving a change of control of the Company following the consummation of the transactions contemplated by the Underwriting Agreement, provided that in its sole discretion and at its sole expensethe event that such tender offer, may electmerger, consolidation or other such transaction is not completed, such Locked-up Shareholder’s Shares shall remain subject to the provisions of this Agreement, and provided further that “change of control” as used herein, shall mean the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (iias defined in Section 13(d)(3) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must Exchange Act), or group of persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least fifty one percent (51%) of total voting shares of the Company. In the case of each transfer or distribution pursuant to clauses (i) through (ix) above, no public reports or filings reporting a reduction in beneficial ownership of Shares of the Company shall be so disclosed (with required or shall be voluntarily made by the Locked-up Shareholder during the Lock-up Period, unless such duty of cooperation not requiring public report or filing is required under the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Exchange Act.

Exceptions. The obligations imposed by section 8(b) hereof of this Section 12 shall not applyapply to Confidential Information that: (i) is submitted to a Regulatory Authority to facilitate the issuance of, or shall cease to applyotherwise in connection with, to correspondence and/or submissions filed for any Confidential Information if or whenRegulatory Approval of a Product, and to the extent provided, that, reasonable measures shall be taken to assure confidential treatment of such Confidential Information: information; (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (dii) is independently developed provided by the Recipient to third parties under confidentiality agreements having provisions at least as stringent as those in this Agreement, for consulting, manufacturing development, manufacturing, external testing and marketing research with respect to any of the subject matter of this Agreement; and, with respect to JAH, to third parties who are actual or potential Sublicensees or other development/marketing partners of JAH; (iii) is provided by the RecipientRecipient to actual or prospective investors, or to a Party’s Affiliatesaccountants, attorneys and other professional advisors, and in the case of disclosure to such prospective investors, accountants, attorneys and advisors, in each such case, only under confidentiality terms having provisions at least as stringent as those in this Section 12; (iv) is otherwise required to be disclosed in compliance with Applicable Laws or regulations (including, without limitation and for the avoidance of doubt, the requirements of the U.S. Securities and Exchange Commission, or any use other stock exchange on which securities issued by a Party are traded) or order by a court or other governmental authority having competent jurisdiction; provided, that, if a Recipient is required to make any such disclosure of or reference to the a Discloser’s Confidential Information; or (e) is , the Recipient will give reasonable advance written notice to the Discloser of such disclosure requirement and, except to the extent inappropriate in the case of patent applications, will use its Commercially Reasonable Efforts to secure confidential treatment of such Confidential Information required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(sdisclosed; or (v) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, submitted to a patent-granting government authority/agency in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) connection with the Discloser in protecting Patents related to a Product, provided, that, reasonable measures shall be taken to assure confidential treatment of such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)information.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding the provisions of Section 2.1 above, the Company shall not apply, deliver materials or shall cease to apply, portions of materials with respect to any Confidential Information if or whenmeeting of the Board to an Observer, and the Company may ask an Observer to recuse himself or herself, if the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itCompany determines, in its sole discretion and at its sole expensediscretion, that the Observer's access to such information (i) presents a potential conflict of interest with the Stockholders, including any conflict resulting from the Board's consideration of issues relating to this Agreement, any other contractual arrangement with the Stockholders or any transaction in which the Stockholders may electhave any interest other than as investors in the Company, and (ii) reasonably cooperate(scould jeopardize an attorney-client privilege, which determination is made after the Company's consultation with its outside counsel, or (iii) is necessary or appropriate in furtherance of discharging the Board's fiduciary duties to the Company's shareholders. If the Board requests that an Observer be recused from any meeting of the Board, or portion thereof, in accordance with the Discloser in protecting foregoing, such confidential or proprietary nature of the Confidential Information that must Observer shall be so disclosed recused and not entitled to be present, participate or receive any materials or portions of materials with respect thereto. Notwithstanding the provisions of Section 2.2 above, an Observer shall not be entitled to receive copies of any consent, if the Board determines, in its sole discretion, that providing the consent (i) presents a potential conflict of interest with such duty the Stockholders, including any conflict resulting from the Board's consideration of cooperation not requiring issues relating to this Agreement, any other contractual arrangement with the Recipient Stockholders or Recipient’s Affiliates any transaction in which the Stockholders may have any interest other than as investors in the Company, (ii) could jeopardize an attorney-client privilege, which determination is made after the Company's consultation with its outside counsel, or (iii) is necessary or appropriate in furtherance of discharging the Board's fiduciary duties to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)the Company's shareholders.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 7.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s Affiliates stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iii) unless (A) the Requisite Preferred Holders and (B) the holders of a majority in voting power of the then outstanding shares of Series D Preferred Stock and Series D-1 Preferred Stock, voting separately as a class, elect to receive a lesser amount by written notice given to the Company at least three (3) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 7.2(d) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (e) no Stockholder that is required to a venture capital fund, investment fund or similar investment vehicle shall be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itrequired, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (connection with such duty of cooperation not requiring the Recipient Proposed Sale, to enter into any agreements with non-competition, non-solicitation, non-hire provisions or Recipient’s Affiliates to initiate or participate in any litigation or incur more similar restrictive covenants (other than de minimis out-of-pocket costscustomary covenants regarding confidentiality).

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders subject to the immediately preceding parenthetical but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to actual fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) subject to clause (g) below, unless the holders of at least a majority of the Preferred Stock elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming and treating for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Key Holder, Investor or Common Stock Investor would require under applicable law (cx) becomes known the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder, Investor or Common Stock Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder, Investor or Common Stock Investor in lieu thereof, against surrender of the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, which would have otherwise been sold by such Key Holder, Investor or Common Stock Investor, an amount in cash equal to the Recipient fair value (as determined in good faith by the Company) of the securities which such Key Holder, Investor or RecipientCommon Stock Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable; (f) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s Affiliates from sources failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; (g) other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and covenant to the Discloser or Discloser’s affiliates; provide the indemnification described in clause (d) is independently developed by above and to deliver the Recipient shares of the Company at Closing (if applicable), other customary closing deliverables and other customary covenants reasonably necessary to facilitate the consummation of the Closing, no Stockholder shall be required to make any covenants as to such Stockholder’s actions, business or operations or that would otherwise restrict the Recipient’s Affiliatesactions of such Stockholder (including, without for example, any use of non-compete or reference similar provisions); (h) notwithstanding anything in this Agreement to the Discloser’s Confidential Information; or (e) is required contrary, if the consideration to be disclosed by law paid to the Series B Preferred Stock in connection with the Proposed Sale is less than $6.23 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or applicable legal processother similar recapitalization), provided that holders of a majority of the Recipient or Series B Preferred Stock consent to the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Proposed Sale; and (i) give notwithstanding anything in this Agreement to the Discloser as much prior notice thereof as contrary, if the consideration to be paid to the Series B-1 Preferred Stock in connection with the Proposed Sale is reasonably practicable so that less than $6.75 per share (subject to appropriate adjustment in the Discloser may seek such protective orders event of any stock dividend, stock split, combination or other confidentiality protection as itsimilar recapitalization), in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature holders of a majority of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring Series B-1 Preferred Stock consent to the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Proposed Sale.

Exceptions. The Notwithstanding anything in this Section 8.2 to the contrary, if the Triggering Event occurs, then during the period beginning on the date the Triggering Event occurs and ending on the date the RMT Partner Stockholder Approval is obtained, in response to an unsolicited, bona fide written Spinco Acquisition Proposal that did not arise from or in connection with a breach of the obligations imposed by section 8(bset forth in this Section 8.2, Remainco may: (i) hereof shall not applyprovide information in response to a request therefor (including non-public information regarding Remainco and its Subsidiaries (including the Spinco Entities)) to the Person who made such Spinco Acquisition Proposal, provided that such information has previously been made available to, or shall cease is made available to, RMT Partner prior to applyor concurrently with the time such information is made available to such Person and that, prior to furnishing any Confidential Information if such information, Remainco receives from the Person making such Spinco Acquisition Proposal an executed confidentiality agreement with terms that are not materially less restrictive to the other party than the terms in the Confidentiality Agreement are on RMT Partner (it being understood that such confidentiality agreement need not prohibit the making or when, and amending of a Spinco Acquisition Proposal to the extent thatsuch Spinco Acquisition Proposal is made directly to Remainco); provided, however, that if the Person making such Confidential Information: Spinco Acquisition Proposal is a competitor of the Spinco Business, Remainco shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 8.2(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and (aii) was known to the Recipient participate in any discussions or the Recipient’s Affiliates negotiations with any such Person regarding such Spinco Acquisition Proposal; in each case, if, and only if, prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or taking any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall action described in clause (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) above, the Remainco Board determines in good faith after consultation with Remainco’s financial advisor that based on the information then available such Spinco Acquisition Proposal either constitutes a Spinco Superior Proposal or would reasonably cooperate(s) with the Discloser be expected to result in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)a Spinco Superior Proposal.

Exceptions. The obligations imposed Notwithstanding the forgoing, a Large Holder will not be required to comply with Section 2.1(b) in connection with any proposed Liquidation Transaction (a “Proposed Transaction”) unless: (a) any representations and warranties to be made by section 8(bsuch Large Holder in connection with the Proposed Transaction are limited to representations and warranties related to authority, ownership of the Shares held by such Large Holder and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Large Holder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatCorporation’s securities such Large Holder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Large Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Large Holder have been duly executed by the Large Holder and delivered to the Recipient acquirer and are enforceable against the Large Holder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Large Holder’s obligations thereunder, will cause a breach or violation of the Recipient’s Affiliates prior terms of any agreement of the Large Holder or any law or judgment, order or decree of any court or governmental agency specially applicable to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; Large Holder; (b) wasthe Large Holder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Transaction, or becomes through no breach of other than the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; Corporation; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than liability for indemnification, if any, of such Large Holder in the Discloser or Discloser’s Affiliates under circumstances not involving any breach Proposed Transaction and for the inaccuracy of any confidentiality obligation between representations and warranties made by the Corporation in connection with such source Proposed Transaction, is several and not joint with any other person, and is pro rata in accordance with the Discloser or Discloser’s affiliates; portion of the proceeds received by such Large Holder in the Proposed Transaction; (d) is independently developed by upon the Recipient or consummation of the Recipient’s AffiliatesProposed Transaction, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give every holder of Series B Preferred Stock will receive the Discloser as much prior notice thereof as is reasonably practicable so that same amount of consideration per share of Series B Preferred Stock, (ii) every holder of Series A Preferred Stock will receive the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electsame amount of consideration per share of Series A Preferred Stock, and (iiiii) reasonably cooperate(s) with every holder of Common Stock will receive the Discloser in protecting such confidential or proprietary nature same amount of the Confidential Information that must be so disclosed (with such duty consideration per share of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Common Stock.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding any provision in this Agreement, the Company shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: be obligated under this Agreement: (a) was known To indemnify Indemnitee for an accounting or disgorgement of profits pursuant to the Recipient or the Recipient’s Affiliates prior to the receipt Section 16(b) of the Confidential Information from the Discloser Securities Exchange Act of 1934, as amended, if applicable, or Discloser’s Affiliates; similar provisions of U.S. federal, state or local statutory law or common law, if Indemnitee is held conclusively by a court of competent jurisdiction to be liable therefor (including pursuant to any settlement arrangements); (b) wasTo indemnify Indemnitee for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or becomes through no breach the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Recipient’s ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (c) To advance expenses or provide indemnification in connection with any Proceeding (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach part of any confidentiality obligation between such source Proceeding) initiated or brought voluntarily by Indemnitee, and not by way of defense, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Discloser Company or Discloser’s affiliates; (d) is independently developed by the Recipient its directors, officers, employees, agents or the Recipient’s Affiliatesother indemnitees, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall unless (i) give the Discloser as much Company’s board of directors authorized the Proceeding (or the relevant part of the Proceeding) prior notice thereof as is reasonably practicable so that to its initiation, (ii) the Discloser may seek such protective orders or other confidentiality protection as itCompany provides the indemnification, in its sole discretion and at its sole expensediscretion, may elect, and pursuant to the powers vested in the Company under applicable law; (ii) reasonably cooperate(siii) with respect to Proceedings brought to establish or enforce a right to indemnification or advancement under this Agreement or any other agreement, insurance policy, or under the Discloser Company’s Articles of Association, as now or hereafter in protecting such confidential effect; or proprietary nature (iv) otherwise required by applicable law; or (d) To provide indemnification for any acts, omissions or transactions from which Indemnitee may not be relieved of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)liability under applicable law.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 5.1 above in connection with any proposed Sale Event of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Charter related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Charter) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless a Preferred Majority (as defined in the Charter) elect to receive a lesser amount by written notice given to the Company at least 5 days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipient’s relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a deemed Liquidation Event (or any of its Affiliates’assuming for this purpose that the Proposed Sale is a deemed Liquidation Event) obligations hereunder, known in accordance with the Charter in effect immediately prior to the publicProposed Sale; and (cf) becomes known subject to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Section 5.2(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed Any individual exceptions to the above policy require prior approval by section 8(bthe Chief Financial Officer. Any changes to the above policy require prior approval by the Board of Directors of ▇▇▇▇▇▇▇ Manufacturing Co., Inc. In order for [ ] (“Assignee Lender”) hereof shall to determine whether or not applyit will participate in the syndicated credit facility (the “Financing”) provided to ▇▇▇▇▇▇▇ Manufacturing Co., Inc. (the “Company”), pursuant to that Credit Agreement dated as of October 10, 2007 (as the same may form time to time be amended, modified or restated, the “Credit Agreement”), among the Company, as borrower, ▇▇▇▇▇▇▇ Dura-Vent Company, Inc., ▇▇▇▇▇▇▇ Strong-Tie Company Inc., ▇▇▇▇▇▇▇ Strong-Tie International, Inc. and such other Material Subsidaries (as such term is defined in the Credit Agreement) of the Company as may from time to time be joined thereto as guarantors, [ ] (“Assignor Lender”) and the other banks and other institutional lenders from time to time party thereto and named therein as “Lenders”, and ▇▇▇▇▇ Fargo Bank, National Association in its separate capacity as administrative agent on behalf and for the benefit of itself and the Lenders (in such capacity, the “Agent”), Assignee Lender has requested, and the Company is prepared to make available to Assignee Lender, certain financial and other information relating to the Company and its affiliates which is non-public, confidential or proprietary in nature. By execution of this confidentiality agreement (this “Agreement”) and as a condition to such information being furnished to Assignee Lender, Assignee Lender agrees that all information concerning the Company, in whatever form maintained (whether documentary, computerized, electronic or otherwise), that is furnished or has been previously furnished to Assignee Lender by or on behalf of the Company (herein collectively referred to as the “Confidential Information”) in connection with the Financing, will be held and treated by Assignee Lender, its affiliates, and its and their respective directors, officers, employees, advisors, agents, or shall cease representatives (collectively, “Related Persons”) in confidence and will not, except as hereinafter provided, without the prior written consent of the Company and Assignor Lender, be disclosed by Assignee Lender or any Related Person in any manner whatsoever, in whole or in part, or be used by Assignee Lender or any Related Person other than in connection with Assignee Lender’s consideration or provision of the Financing. Assignee Lender further agrees to apply, to any disclose Confidential Information only to Related Persons who need to know the Confidential Information for purposes of evaluating the Financing and who agree to keep such information confidential and to be bound by the terms of this Agreement to the same extent as if or whenthey were parties hereto, and for such purposes Assignee Lender shall be responsible for any breach of this Agreement by such Related Persons. In addition, subject to the extent thatlast sentence of the preceding paragraph, such Confidential Information: Assignee Lender agrees that it will not make any disclosure (ai) was known to the Recipient that it, Assignor Lender or the Recipient’s Affiliates prior to the receipt of the Company are having or have had discussions, or that it has received Confidential Information from the Discloser Company or Discloser’s Affiliates; Assignor Lender concerning the Financing or (bii) wasconcerning any investigations, discussions or becomes through no breach of negotiations relating to the Recipient’s (Financing, including the status thereof or any of its Affiliates’) obligations hereunderthe terms, known conditions or other facts or events with respect thereto; provided, however, and subject to the public; (c) becomes known paragraphs below, Assignee Lender may make such disclosure if in the opinion of Assignee Lender’s counsel such disclosure must be made by Assignee Lender in order that Assignee Lender not violate any applicable law, rule or regulation and, prior to such disclosure, Assignee Lender promptly advises and consults with the Recipient or Recipient’s Affiliates from sources other than Company and its legal counsel concerning the Discloser or Discloser’s Affiliates under circumstances not involving any breach information Assignee Lender proposes to disclose. Notwithstanding the foregoing, for purposes of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliatesthis Agreement, without any use of or reference to the Discloser’s “Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation ” does not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs).include information which:

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) The obligations of confidentiality and nondisclosure shall not apply to Confidential Information which the Receiving Party can demonstrate by competent evidence (i) at the time of disclosure is in the public domain; (ii) after disclosure becomes part of the public domain through no act or omission by the Receiving Party; (iii) was known to in the Recipient or possession of the Recipient’s Affiliates Receiving Party prior to the receipt of the Confidential Information from the Discloser disclosure or Discloser’s Affiliatesdevelopment under this Agreement; (biv) wasis rightly received by the Receiving Party, without obligation of secrecy, from a Third Party who was entitled to receive and transfer such; or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (dv) is independently developed by employees of the Recipient or the Recipient’s Affiliates, Receiving Party without any use of or reference to Confidential Information of the DiscloserDisclosing Party. (b) The Receiving Party shall also be entitled to disclose the Disclosing Party’s Confidential Information; or : (ei) that is required to be disclosed by law applicable laws or applicable legal processregulations (including, without limitation, to comply with Securities and Exchange Commission, in accordance with generally accepted accounting principles, or stock exchange disclosure requirements) or by order of any governmental body or a court of competent jurisdiction; (ii) to regulatory authorities for the purpose of seeking regulatory approval of a Tocagen Product in the case of Tocagen or a Commercial Product in the case of Siemens; (iii) as may be necessary or appropriate in connection with the enforcement of this Agreement; (iv) as may be necessary to Third Parties in connection with business transactions with the Parties, provided, that such Third Parties shall be bound by a confidentiality agreement obligating them to keep such information confidential consistent with the terms of this Agreement; and (v) as may be required otherwise, provided that the Recipient Receiving Party gives the Disclosing Party an outline of the material to be disclosed and the Disclosing Party shall consent to such disclosure; provided, that the Receiving Party required to disclose such information shall use Commercially Reasonable Efforts to obtain confidential treatment of such information by the agency or court or other disclosee to the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall maximum permitted extent under law, and that, in the case of disclosures under (i) give shall provide the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) Disclosing Party with the Discloser in protecting such confidential or proprietary nature a copy of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient proposed disclosure in sufficient time to allow reasonable opportunity to comment or Recipient’s Affiliates institute legal action to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)prevent disclosure thereon.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known Excluded Action or Omissions To indemnify, exonerate or hold harmless Indemnitee for Expenses resulting from acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification, exoneration or hold harmless rights under this Agreement or applicable law; provided, however, that notwithstanding any limitation set forth in this Section 7(a) regarding the Company’s obligation to provide indemnification, exoneration or hold harmless rights to Indemnitee shall be entitled under Section 2(b) to receive Expense Advances hereunder with respect to any such Claim unless and until a court having jurisdiction over the Recipient Claim shall have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or the Recipient’s Affiliates prior to the receipt of the Confidential Information lapsed) that Indemnitee has engaged in acts, omissions or transactions for which Indemnitee is prohibited from the Discloser receiving indemnification under this Agreement or Discloser’s Affiliates; applicable law. (b) wasClaims Initiated by Indemnitee To indemnify, exonerate or becomes through no breach hold harmless or make Expense Advances to Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of the Recipient’s (defense, counterclaim or any of its Affiliates’) obligations hereundercross claim, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall except (i) give with respect to actions or proceedings brought to establish or enforce an indemnification, exoneration or hold harmless right under this Agreement or any other agreement or insurance policy or under the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders Company’s Certificate of Incorporation or other confidentiality protection as itBylaws now or hereafter in effect relating to Claims for Indemnifiable Events, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(sin specific cases if the Board of Directors has approved the initiation or bringing of such Claim, or (iii) with the Discloser in protecting such confidential or proprietary nature as otherwise required under Section 145 of the Confidential Information that must DGCL, regardless of whether Indemnitee ultimately is determined to be so disclosed (with entitled to such duty of cooperation not requiring indemnification, exoneration, hold harmless right, Expense Advances or insurance recovery, as the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)case may be.

Exceptions. The obligations imposed BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the preceding subparagraphs of this Paragraph 5 will be construed to require NAI to pay or reimburse: • Excluded Taxes; or • Losses incurred or suffered by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and Interested Party to the extent that, such Confidential Information: proximately caused by (aand attributed by any applicable principles of comparative fault to) was known to the Recipient Established Misconduct of that Interested Party; or the Recipient’s Affiliates prior to the receipt • Losses that result from any Liens Removable by BNPPLC; or • transaction expenses (including Attorneys’ Fees) incurred by any of the Confidential Information from Participants in connection with the Discloser drafting, negotiation or Discloser’s Affiliates; (b) was, or becomes through no breach execution of the Recipient’s Participation Agreement (or supplements making them parties thereto) or in connection with any due diligence Participants may undertake before entering into the Participation Agreement; or • Local Impositions or other Losses contested, if and so long as they are contested, by NAI in accordance with any of its Affiliates’the provisions of this Lease or other Operative Documents which expressly authorize such contests; or • transaction expenses or other Losses caused by or necessary to accomplish any conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a Permitted Transfer only by reason of clause (3) obligations hereunder, known of the definition of Permitted Transfer in the Common Definitions and Provisions Agreement; or • any amount which may from time to time be payable by BNPPLC to any Participant representing the publicexcess of “Base Rent” as defined in the Participation Agreement over Base Rent as defined in and calculated pursuant to this Lease and the Common Definitions and Provisions Agreement; (c) becomes known to or • any decline in the Recipient or Recipient’s Affiliates from sources other than value of the Discloser or Discloser’s Affiliates under circumstances Property solely by reason of decline in general market conditions and not involving because of any breach of any confidentiality obligation between such source this Lease or other Operative Documents by NAI. Further, without limiting BNPPLC’s rights (as provided in other provisions of this Lease and other Operative Documents) to include the following in the calculation of the Lease Balance, the Break Even Price and the Discloser Make Whole Amount (as applicable) or Discloser’s affiliates; (d) is independently developed by to collect Base Rent, a Supplemental Payment and other amounts, the Recipient calculation of which depends upon the Lease Balance, BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the Recipient’s Affiliates, without any use preceding subparagraphs of this Paragraph 5 will be construed to require NAI to pay or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed reimburse an Interested Party for costs paid by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) BNPPLC with the Discloser in protecting such confidential or proprietary nature proceeds of the Confidential Information that must be so disclosed (with such duty Initial Advance as part of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Transaction Expenses.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding any other provision of this Agreement, the Company shall not applybe obligated pursuant to the terms of this Agreement: a. To indemnify or advance Expenses to Indemnitee with respect to Proceedings arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law. b. To indemnify or advance Expenses to Indemnitee with respect to Proceedings initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Charter Documents now or hereafter in effect relating to Proceedings for Indemnifiable Events, or shall cease to apply, (ii) in specific cases if the Board of Directors of the Company has approved the initiation or bringing of such Proceeding by a majority vote of the Disinterested Directors. c. To indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to any Confidential Information action instituted (i) by Indemnitee to enforce or interpret this Agreement, if a court having jurisdiction over such action determines that each of the material assertions made by Indemnitee as a basis for such action was not made in good faith or whenwas frivolous, or (ii) by or in the name of the Company to enforce or interpret this Agreement, if a court having jurisdiction over such action determines that each of the material defenses asserted by Indemnitee in such action was made in bad faith or was frivolous. d. To indemnify Indemnitee for Expenses, judgments, fines, penalties and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute. e. To indemnify Indemnitee for Liabilities or Expenses arising from an administrative or civil enforcement action commenced by a federal banking agency to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed prohibited by the Recipient laws or the Recipient’s Affiliates, without any use regulations of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)agency.

Exceptions. The obligations imposed Notwithstanding anything herein to the contrary, at any time prior to the time, but not after, the Company Requisite Vote is obtained, if the Company receives a written Acquisition Proposal from any person, (i) the Company and its Representatives may provide non-public information and data concerning the Company and its subsidiaries in response to a request therefor by section 8(bor on behalf of such person to such person, its outside counsel, financial advisor(s), lenders or other financing sources and/or potential divestiture counterparties, so long as the Company receives from such person an executed confidentiality agreement on customary terms (it being understood that such confidentiality agreement need not prohibit the making or amendment of an Acquisition Proposal or otherwise contain any standstill or similar provision); provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its subsidiaries that the Company made available to any person given such access which was not previously made available to Parent or Merger Sub (unless precluded by Applicable Law), (ii) hereof shall not applythe Company and its Representatives may engage or participate in any discussions or negotiations with such person, its outside counsel, financial advisor(s), lenders or other financing sources and/or potential divestiture counterparties and (iii) the Company Board may authorize, adopt, approve, recommend, or shall cease otherwise declare advisable or propose to applyauthorize, to any Confidential Information adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if or when, and only to the extent that, such Confidential Information: (a1) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information such Acquisition Proposal did not result from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no a breach of the Recipient’s this Section 6.4, (or 2) prior to taking any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall action described in clause (i) give or (ii) above, the Discloser as much prior notice thereof as Company Board determines in good faith that failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Law, (3) in each such case referred to in clause (i) or (ii) above, the Company Board has determined in good faith (after consultation with its outside legal counsel and the Financial Advisor) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, expected to result in its sole discretion and at its sole expense, may electa Superior Proposal, and (ii4) reasonably cooperate(sin the case referred to in clause (iii) above, the Company Board determines in good faith (after consultation with its outside legal counsel and the Discloser in protecting Financial Advisor) that such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Acquisition Proposal is a Superior Proposal.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 4.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, including, without limitation, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquiror and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations there under, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency by which such Stockholder is subject or bound; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Certificate of Incorporation); (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Certificate of Incorporation in effect immediately prior to the receipt Proposed Sale; and (f) subject to subsection 4.3(e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of a series or class of capital stock of the Confidential Information from Company are given an option as to the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach form and amount of consideration to be received as a result of the RecipientProposed Sale, all holders of such series or class of capital stock will be given the same option; provided, however, that nothing in this subsection 4.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s (failure to satisfy any condition, requirement or any of its Affiliates’) obligations hereunder, known limitation that is generally applicable to the public; (c) becomes known to the Recipient or RecipientCompany’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Member will not be required to comply with Section ‎10.07‎(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (i) any representations and warranties to be made by section 8(bsuch Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) hereof shall not applythe Member holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatUnits such Member purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aB) was known the obligations of the Member in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from the Discloser Member’s obligations thereunder, will cause a breach or Discloser’s Affiliates; (b) was, or becomes through no breach violation of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach terms of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliatesagreement, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processjudgment, provided that the Recipient order or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders decree of any court or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and governmental agency; (ii) reasonably cooperate(s) the Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Discloser Proposed Sale, other than for the inaccuracy of any representation or warranty made by the Company in protecting such confidential or proprietary nature connection with the Proposed Sale (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Confidential Information that must be so disclosed Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members); (iii) the liability for indemnification, if any, of such Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Members in connection with such duty Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of cooperation an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members), and subject to the provisions of this Agreement, and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement related to the allocation of the escrow); (iv) a Member’s liability shall be limited to such Member’s pro rata share (determined based on the respective proceeds payable to each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which need not be limited as to such Member; (v) upon the consummation of the Proposed Sale: (A) except as provided in Section ‎10.07‎(b)(vi), each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (B) the aggregate consideration receivable by all holders of Units shall be allocated among the holders of Series B Preferred Units, Series A Preferred Units, Common Units and Incentive Units in accordance with Section ‎8.01 of this Agreement as if such consideration were distributed to the Members pursuant thereto; (vi) except as provided in Section ‎10.07‎(b)‎(b)(vi), subject to clause (v) above, requiring the Recipient same form of consideration to be available to the holders of any single class or Recipientseries of Units, if any holders of any Units are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such Units will be given the same option; and (vii) no Member who is not an employee shall be required to agree to any restrictive covenant in connection with the Proposed Sale (including, without limitation, any covenant not to compete with or covenant not to solicit or hire customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Member’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)capacity as a Member of the Company.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and Notwithstanding anything to the extent thatcontrary contained in this Agreement or any other agreement between the Company, such Confidential Information: the Managing Member and/or any of the other Members: (a) was known to all issuances, repurchases and redemptions of Equity Interests of the Recipient Managing Member and of Units by the Managing Member or the Recipient’s Affiliates prior Company, respectively, shall be subject to applicable restrictions contained in the receipt General Corporation Law of the Confidential Information State of Maryland (as the same exists or hereafter may be amended from time to time, and any successor thereto) or the Discloser Delaware Act and in the Managing Member’s and its Subsidiaries’ (including the Company’s) debt and equity financing agreements, and if any such restrictions prohibit the issuance, repurchase or Discloser’s Affiliates; redemption of such Equity Interests of the Managing Member or of Units hereunder that the Managing Member or the Company, as applicable, is otherwise entitled or required to make, the time periods provided in this Agreement or any other such repurchase agreement shall be suspended, and the Managing Member and/or the Company, as applicable, may make such repurchases as soon as it is permitted to do so under such restrictions; (b) wasif (A) the Managing Member incurs any indebtedness and desires to transfer the proceeds of such indebtedness to the Company, or becomes through no breach and (B) the Managing Member is unable to lend the proceeds of such indebtedness to the Company on an equivalent basis because of restrictions in any of the RecipientManaging Member’s and its Subsidiaries’ (including the Company’s) debt and equity financing agreements, then notwithstanding Section 3.03 or any Section 3.04, the Managing Member may in good faith implement an economically equivalent alternative arrangement in connection with the transfer of its Affiliates’) obligations hereunder, known proceeds to the publicCompany using preferred Equity Interests of the Company without complying with the provisions contained in Section 3.03 and Section 3.04; and (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source Company and the Discloser or Discloser’s affiliates; (d) is independently developed Managing Member may each separately issue Equity Interests at any time and from time to time without complying with the provisions contained in Section 3.03 and Section 3.04, if deemed appropriate by the Recipient Company or the Recipient’s AffiliatesManaging Member, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processas applicable, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, acting in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)good faith.

Exceptions. The Notwithstanding the foregoing provisions of this Section 9.5 (provided, however, that nothing in the following clauses shall permit the Company to effect a transaction, disposition, or transfer that is prohibited by the Pledge Agreement): (i) any Subsidiary of the Company may be merged or consolidated with or into, or have its assets liquidated and distributed to, the Company or any other Subsidiary of the Company; PROVIDED that (x) if any such merger or consolidation shall be with the Company, the Company shall be the Person surviving such merger or consolidation, (y) if any such merger or consolidation shall be between any Subsidiary of the Company and a Wholly Owned Subsidiary of the Company, such Wholly Owned Subsidiary shall be the Person surviving such merger or consolidation, (z) if any such merger or consolidation shall be between a Subsidiary Guarantor and a Subsidiary of the Company that is not a Subsidiary Guarantor (other than Genzyme Securities Corporation), and such Subsidiary Guarantor is not the continuing or surviving Person, then the continuing or surviving Person shall have assumed all of the obligations imposed by section 8(bof such Subsidiary Guarantor hereunder and under the other Loan Documents and (aa) hereof if any such merger or consolidation shall be between Genzyme Securities Corporation and a Subsidiary of the Company that is not applya Subsidiary Guarantor, and Genzyme Securities Corporation is not the continuing or surviving Person, then the Company and its Subsidiaries shall, or shall cease to applycause the holder of the stock in such continuing or surviving Person, to execute and deliver a Pledge Agreement in substantially the form of EXHIBIT G, together with the certificates for all shares of capital stock of the continuing or surviving Person pledged thereunder and undated stock powers; (ii) the Company and its Subsidiaries may acquire any Confidential Information if assets used or when, and useful in the lines of business permitted under Section 9.10 or the stock or other equity interests or rights as a holder of indebtedness of any Person that is engaged in a line of business permitted to the extent that, such Confidential Information: (a) was known to Company under Section 9.10 or merge any Person that is in a line or lines of business permitted under Section 9.10 with the Recipient Company or a Subsidiary or the Recipient’s Affiliates prior Company or a Subsidiary with any such Person (provided that the conditions in the provisos in Section 9.5(d)(i) are satisfied with respect to such merger) provided that at the receipt time of the Confidential Information from consummation of any such transaction and after giving effect thereto, the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach Company shall be in compliance with the covenants in Section 9.9 as of the Recipient’s end of the most recent fiscal quarter or annual period of the Company and the transaction will not be reasonably likely to result in the noncompliance with such financial covenants; (iii) the Company or any of its Affiliates’Subsidiaries may purchase inventory and other Property to be sold or used in the ordinary course of business, make Investments permitted by Section 9.8 hereof and make Capital Expenditures in the ordinary course of its business; (iv) obligations hereunderthe Company or any Subsidiary of the Company may convey, known sell, lease, loan, transfer or otherwise dispose of any or all of its Property to the publicCompany or any other Subsidiary of the Company (and the Company or such other Subsidiary may acquire such Property); PROVIDED that if any such conveyance, sale, lease, loan, transfer or other disposition is to a Subsidiary (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than Genzyme Securities Corporation) that is not a Subsidiary Guarantor and relates to all or any material part of the Discloser Property of the Company or Discloser’s Affiliates a Subsidiary Guarantor, then the Company shall cause such transferee Subsidiary to assume, and such transferee Subsidiary shall assume, all of the obligations of the Company or such Subsidiary Guarantor hereunder and under circumstances not involving the other Loan Documents; and PROVIDED, further, that the Company or such Subsidiary Guarantor shall remain fully obligated as an Obligor hereunder; (v) the Company or any breach Subsidiary may convey, sell, lease, transfer or otherwise dispose of any confidentiality obligation between such source non-material Property (of the Company and its Subsidiaries, taken as a whole) including equity interests in any Person and the Discloser licensing of patents and product rights; and (vi) the Company or Discloser’s affiliates; (d) is independently developed by the Recipient any Subsidiary may lease or the Recipient’s Affiliates, without sublease any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)real Property.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding the foregoing, a Voting Party shall not applybe required to comply with Section 7(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (i) any representations and warranties to be made by such Voting Party in connection with the Proposed Sale are limited to representations and warranties related to authority, or shall cease ownership and the ability to applyconvey title to such Shares, including but not limited to any Confidential Information if or whenrepresentations and warranties that (A) the Voting Party holds all right, title and interest in and to the extent thatShares such Voting Party purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aB) was known the obligations of the Voting Party in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Voting Party have been duly executed by the Voting Party and delivered to the Recipient acquirer and are enforceable against the Voting Party in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Voting Party’s obligations thereunder, shall cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (ii) the Voting Party shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (iii) the liability for indemnification, if any, of such stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Voting Party in connection with such Proposed Sale (in accordance with the provisions of the Certificate); (iv) upon the consummation of the Proposed Sale, (A) each holder of each class or series of the Company’s Affiliates stock shall receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (B) each holder of a series of Preferred Stock shall receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (C) each holder of Common Stock shall receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the holders of at least sixty percent (60%) of the voting power of the outstanding shares of Preferred Stock elect otherwise by written notice given to the Company at least 5 days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; and (cv) becomes known subject to clause (iv) above, requiring the same form of consideration to be available to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach holders of any confidentiality obligation between such source and single class or series of capital stock, if any holders of any capital stock of the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference Company are given an option as to the Discloser’s Confidential Information; or (e) is required form and amount of consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information that must Proposed Sale, all holders of such capital stock shall be so disclosed (with such duty of cooperation not requiring given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and Notwithstanding anything to the extent thatcontrary set forth in Section 5.04(a), such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates at any time prior to obtaining the receipt Required Stockholder Approval, in response to an unsolicited, bona fide written Acquisition Proposal received after the date of the Confidential Information this Agreement that is not withdrawn and did not arise from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no in connection with a breach of the Recipient’s obligations set forth in this Section 5.04, the Company may: (i) furnish information in response to a request therefor (including nonpublic information regarding the Company or any of its Affiliates’Subsidiaries) obligations hereunder, known to the publicPerson who made such Acquisition Proposal; (c) becomes known provided that such information has previously been made available to, or is made available to, Parent prior to or substantially concurrently with the time such information is made available to such Person; and provided, further, that, prior to furnishing any such information, the Company executes a confidentiality agreement between the Company and the Person making such Acquisition Proposal containing terms that are not less restrictive to the Recipient or Recipient’s Affiliates from sources other Person making such Acquisition Proposal than the Discloser terms in the Confidentiality Agreement are on Parent and additional terms that expressly permit the Company to comply with the terms of this Section 5.04; and (ii) participate in any discussions or Discloser’s Affiliates under circumstances not involving negotiations with any breach of such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall action described in clauses (i) give or (ii) above, (A) the Discloser as much prior notice thereof as Board of Directors determines in good faith (I) after consultation with its outside legal counsel and its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably practicable so likely to result in a Superior Proposal and (II) after consultation with its outside legal counsel, that failure to take such action described in clauses (i) or (ii) above, as applicable, would reasonably be expected to constitute a breach of the Discloser may seek such protective orders or other confidentiality protection as it, directors’ fiduciary duties under Delaware Law; and (B) the Company has delivered to Parent written notice advising Parent of the Board of Directors’ determination pursuant to the foregoing clause (A) and the Company’s intention to take the action described in its sole discretion and at its sole expense, may elect, clauses (i) and (ii) reasonably cooperate(s) above; provided that only one such notice need be given with the Discloser in protecting such confidential respect to any specific Acquisition Proposal or proprietary nature amended or modified Acquisition Proposal. Table of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs).Contents

Exceptions. The obligations imposed by section 8(bNotwithstanding anything in this Article VII to the contrary, a Lock-Up Investor may sell or otherwise Transfer, and subsection 7.01(a) hereof shall not applyapply to such sale or other Transfer of, Lock-Up Securities during its existence (if such Lock-Up Investor is not a natural person) or shall cease during his lifetime or on death (if such Lock-Up Investor is a natural person): (a) pursuant to applya Permitted Transfer by a Lock-Up Investor; (b) that have been issued pursuant to the exercise by a Founder Investor of the Founder Investor Ordinary Put Option, to any Confidential Information the Founder Investor De-Minimis Put Option (but only if or when, and to the extent that, such Confidential Information: (athe Founder Investor De-Minimis Put Option is exercised pursuant to Section 6.12) was known to the Recipient or the Recipient’s Affiliates prior Swap Option in order to finance the receipt purchase of ReNew India Common Shares for the Confidential Information from the Discloser repayment, prepayment or Discloser’s Affiliatesother discharge of Founder Indebtedness; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; or (c) becomes known in the case of GSW, to any Person solely in respect of such number of its Lock-Up Securities that shall not exceed the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach greater of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give such number that, when taken together with the Discloser number of all Lock-Up Securities previously Transferred by GSW and its Affiliates, will result in GSW and its Affiliates having Transferred Class A Shares and/or Class C Shares in the aggregate representing 5% of the Equivalent Outstanding Beneficial Shares as much prior notice thereof as is reasonably practicable so that of immediately following the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, Closing and (ii) such number as may be necessary to enable GSW to reduce (A) its GSW Total Equity Interest to 33% and/or (B) its GSW Voting Interest to 4.9% (the “GSW Lock-Up Transfer Right”); provided, however, that, in each case of clauses (a) and (c), any such Transfer shall be conditioned upon entry by such transferee(s) into a written agreement, in form reasonably cooperate(s) with satisfactory to the Discloser Company, agreeing to be bound by the transfer restrictions set forth in protecting such confidential this Article VII (which may be accomplished by an addendum or proprietary nature certificate of joinder to this Agreement). In the case of any Transfer by GSW to a third party of Class A and/or Class C Shares that bear a restrictive legend, the Company shall, following the expiry of the Confidential Information applicable Lock-Up Period, assist in removing such restrictive legend if such legend is not, in the reasonable determination of the Company upon advice of legal counsel, required to comply with applicable securities laws; provided, that must be so disclosed (the Company may require an opinion of legal counsel reasonably acceptable to the Company prior to any such removal other than in connection with a Transfer made pursuant to an effective Registration Statement. For the avoidance of doubt, except for Transfers otherwise permitted by this subsection 7.02 and subsection 7.01(a), each Lock-Up Investor shall retain all of its rights as a security holder of the Company with respect to its Lock-Up Securities during the applicable Lock-Up Period, including the right to vote any Lock-Up Securities that are entitled to vote and the right to receive any dividends or distributions in respect of such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis outLock-of-pocket costs)Up Securities.

Exceptions. The Notwithstanding anything to the contrary in Section 6.1 or Section 6.3, but subject to compliance with the remainder of this Article VI, nothing contained in this Agreement shall prevent the Company or its Board of Directors from: (i) complying with its disclosure obligations imposed under applicable Law or the rules and policies of the NYSE, from taking and disclosing to its stockholders a position contemplated by section 8(bRule 14d-9 or Rule 14e-2(a) hereof promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), making a “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company) or from making any legally required disclosure to stockholders with regard to the Transactions or an Acquisition Proposal; provided, that (x) such disclosure includes an express reaffirmation of the Recommendation, without any amendment, withdrawal, alteration, modification or qualification thereof and (y) this Section 6.1(b)(i) shall not apply, or shall cease be deemed to apply, permit the Board of Directors of the Company to any Confidential Information if or when, and make a Change of Recommendation except to the extent thatotherwise permitted by this Section 6.1. (ii) prior to (but not after) obtaining the Company Requisite Vote, contacting and engaging in limited communications with any Person or group of Persons and their respective Representatives who has made an Acquisition Proposal after the date hereof that was not solicited in material breach of Section 6.1(a), solely for the purpose of clarifying such Confidential Information: Acquisition Proposal and the terms thereof and solely so that the Company may inform itself about such Acquisition Proposal; (aiii) prior to (but not after) obtaining the Company Requisite Vote, (A) contacting and engaging in any communications, negotiations or discussions with any Person or group of Persons and their respective Representatives who has made an Acquisition Proposal after the date hereof that was known not solicited in material breach of Section 6.1(a) (which negotiations or discussions need not be solely for clarification purposes) and (B) providing access to the Recipient or the RecipientCompany’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereundersubsidiaries’ properties, known books and records and providing information or data in response to a request therefor by a Person who has made a bona fide Acquisition Proposal after the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances date hereof that was not involving any solicited in material breach of any confidentiality obligation between Section 6.1(a), in each case, if the Board of Directors (I) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor(s), that, based on the information then available, such source Acquisition Proposal constitutes or would reasonably be expected to constitute, result in or lead to a Superior Proposal and (II) has received from the Discloser or Discloser’s affiliatesPerson who has made such Acquisition Proposal an executed Acceptable Confidentiality Agreement; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient Company shall provide to Parent any material non-public information or data that is provided to any Person given such access that was not previously made available to Parent prior to or promptly following the Recipient’s Affiliate(stime it is provided to such Person; (iv) prior to obtaining the Company Requisite Vote, making a Change of Recommendation (only to the extent permitted by Section 6.1(c)(i) or Section 6.1(c)(ii)); or (v) resolving, authorizing, committing or agreeing to take any of the foregoing actions, only to the extent such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall actions would be permitted by the foregoing clauses (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and through (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costsiv).

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and Notwithstanding anything contained in this Agreement to the extent thatcontrary, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates at any time prior to the receipt of the Confidential Information Company Shareholder Approval: (i) the Company (including the Special Committee or the Board of Directors acting solely in accordance with the recommendation of the Special Committee), directly or indirectly through its or their Representatives, may (A) engage in negotiations or discussions with any Third Party and its Representatives that has made an unsolicited offer, inquiry, proposal or indication of interest with respect to an Acquisition Proposal not resulting, in whole or in part, from a breach, in any material respect, of this Section 6.04, if the Discloser Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or Discloser’s Affiliates; the Special Committee has reasonably determined in good faith, after consultation with its outside legal counsel and financial advisor, based on information then available, that (b1) wassuch Acquisition Proposal constitutes, or becomes through no breach of would reasonably be expected to lead to, a Superior Proposal and (2) failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties to the Recipient’s Company shareholders under Applicable Law and (B) furnish to such Third Party or its Representatives (after making the determination set forth in the foregoing clause (A)) information relating to the Company or any of its Affiliates’) obligations hereunder, known Subsidiaries and afford access to the publicbusiness, properties, assets, books or records of the Company or any of its Subsidiaries pursuant to and in accordance with an Acceptable Confidentiality Agreement; provided that, to the extent that any information relating to the Company or its Subsidiaries is provided to any such Third Party or any such Third Party is given access, in each case which was not previously provided to or made available to Parent in connection with this transactions contemplated hereby, such information or access is provided or made available to Parent substantially concurrently with, or promptly following, the time such Third Party is provided such information or access; and (ii) subject to compliance with the rest of this Section 6.04 (including Section 6.04(d)), the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee may, (A) in response to an unsolicited offer, inquiry, proposal or indication of interest with respect to a written Acquisition Proposal not resulting, in whole or in part, from a breach, in any material respect, of this Section 6.04 and that the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee has determined in good faith, after consultation with its outside legal counsel and financial advisor, constitutes a Superior Proposal, make an Adverse Recommendation Change or terminate this Agreement pursuant to and in accordance with Section 10.01(d)(i) in order to enter into a definitive agreement for a Superior Proposal, or (B) in response to an Intervening Event, make an Adverse Recommendation Change, if, in each case of clauses (A) and (B), the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee determines in good faith, after consultation with its outside legal counsel and financial advisor, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company shareholders under Applicable Law. For the avoidance of doubt, the Company may not terminate this Agreement pursuant to Section 10.01(d)(i) unless it pays, or causes to be paid, to Parent the Termination Fee immediately prior to or concurrently with such termination, in accordance with Section 11.04. In addition, nothing contained herein shall prevent the Company or the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee from (A) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act or Item 1012(a) of Regulation M-A promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer) with respect to an Acquisition Proposal (provided that neither the Company nor the Board of Directors nor the Special Committee may recommend any Acquisition Proposal unless permitted by Section 6.04(b)(ii) and even if permitted by the foregoing, is subject to the rights of Parent set forth in this Agreement); (cB) becomes known to issuing a “stop, look and listen” disclosure or similar communication of the Recipient or Recipient’s Affiliates from sources other than type contemplated by Rule 14d-9(f) under the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information1934 Act; or (eC) making any disclosure not related to an Acquisition Proposal to the shareholders of the Company that is required by Applicable Law or with respect to which the Special Committee determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would reasonably be expected to be disclosed inconsistent with its fiduciary duties under Applicable Law. The Company shall cause each of its and its Subsidiaries’ Representatives to comply with this Section 6.04 and shall be responsible for any breach by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Representatives hereof (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itthan, in its sole discretion and at its sole expenseeach case, may electany Representatives that are also Representatives or Affiliates of Parent, and (ii) reasonably cooperate(s) with the Discloser in protecting or that are Representatives of such confidential or proprietary nature Affiliates of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costsParent).

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 4.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, including, without limitation, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient or acquiror and are enforceable against the Recipient’s Affiliates prior Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from Stockholder’s obligations thereunder, will cause a breach or violation of the Discloser terms of any agreement, law or Discloser’s Affiliates; judgment, order or decree of any court or governmental agency by which such Stockholder is subject or bound; (b) wasthe Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, or becomes through no other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Recipient’s (or Company as well as breach by any stockholder of its Affiliates’) obligations hereunderany identical representations, known to the public; warranties and covenants provided by all stockholders); (c) becomes known no Stockholder other than an employee or consultant of the Company shall be required to agree to any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; Proposed Sale. (d) is independently developed the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Recipient or the Recipient’s AffiliatesCompany in connection with such Proposed Sale, without is several and not joint with any use of or reference other person (except to the Discloserextent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders), and, subject to any provisions of the Company’s Confidential Information; or Amended and Restated Certificate of Incorporation regarding the allocation of an escrow, is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Certificate of Incorporation); (e) is required liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be disclosed by law or applicable legal processlimited as to such Stockholder; (f) upon the consummation of the Proposed Sale, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give each holder of each class or series of the Discloser as much prior notice thereof Company’s stock will receive the same form of consideration for their shares of such class or series as is reasonably practicable so that received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of Series D Preferred Stock will receive the Discloser may seek such protective orders or same amount of consideration per share of Series D Preferred Stock as is received by other confidentiality protection holders in respect of their shares of Series D Preferred Stock, each holder of Series C Preferred Stock will receive the same amount of consideration per share of Series C Preferred Stock as itis received by other holders in respect of their shares of Series C Preferred Stock, each holder of Series B Preferred Stock will receive the same amount of consideration per share of Series B Preferred Stock as is received by other holders in its sole discretion respect of their shares of Series B Preferred Stock, each holder of Series A Preferred Stock will receive the same amount of consideration per share of Series A Preferred Stock as is received by other holders in respect of their shares of Series A Preferred Stock and at its sole expenseeach holder of Series Seed Preferred Stock will receive the same amount of consideration per share of Series Seed Preferred Stock as is received by other holders in respect of their shares of Series Seed Preferred Stock, may elect(iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iiiv) reasonably cooperate(s) the payment with respect to each Share is an amount at least equal to the amount payable in accordance with the Discloser Certificate of Incorporation, if such Proposed Sale were deemed a Liquidation Event therein, and is allocated among the Stockholders in protecting such confidential accordance with the Certificate of Incorporation; and (g) subject to subsection 4.2(f) above, requiring the same form of consideration to be available to the holders of any single class or proprietary nature series of capital stock, if any holders of a series or class of capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such series or class of capital stock will be given the same option; provided, however, that must nothing in this subsection 4.2(g) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Shareholder will not be required to comply with Section 5.01(a) in connection with any proposed Change of Control Transaction unless: (i) any representations and warranties to be made by section 8(bsuch Shareholder in connection with the proposed Change of Control Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such Securities, including, but not limited to, representations and warranties that (A) hereof shall not applythe Shareholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatSecurities such Shareholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aB) was known the obli- gations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Shareholder in accordance with their respective terms; and (D) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from the Discloser Shareholder’s obligations thereunder, will cause a breach or Discloser’s Affiliates; (b) was, or becomes through no breach violation of the Recipient’s terms of any agreement, law or judgment, order or decree of any court or governmental agency; (ii) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the proposed Change of its Affiliates’) obligations hereunderControl Transaction, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any confidentiality obligation between Shareholder of any of identical representations, warranties and covenants provided by all Shareholders); (iii) the liability for indemnification, if any, of such source Shareholder in the proposed Change of Control Transaction and for the Discloser or Discloser’s affiliates; (d) is independently developed inaccuracy of any representations and warranties made by the Recipient Company or the Recipient’s Affiliatesits Shareholders in connection with such proposed Change of Control Transaction, without is several and not joint with any use of or reference other person (except to the Discloserextent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any of identical representations, warranties and covenants provided by all Shareholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such proposed Change of Control Transaction, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder; and (iv) upon the consummation of the proposed Change of Control Transaction (A) each holder of each class or series of the Company’s Confidential Information; stock will receive the same form of consideration for their shares of such class or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof series as is reasonably practicable so that the Discloser may seek received by other holders in respect of their shares of such protective orders same class or other confidentiality protection series of stock (except as it, set forth in its sole discretion and at its sole expense, may electSection 5.01(a)(vi) above), and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature aggregate consideration receivable by all holders of the Confidential Information Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a transaction deemed to be a liquidation, dissolution or winding up of the Company pursuant to the Company's Certificate of Incorporation (assuming for this purpose that must the proposed Change of Control Transaction is a transaction deemed to be so disclosed (with such duty a liquidation, dissolution or winding up of cooperation not requiring the Recipient or Recipient’s Affiliates Company pursuant to initiate or participate in any litigation or incur more than de minimis out-of-pocket coststhe Company's Certificate of Incorporation).

Exceptions. The obligations imposed by section 8(bIndemnitee shall be entitled to indemnification under Sections 3(a) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a3(b) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources above in all circumstances other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall following: (i) give the Discloser as much prior notice thereof as If indemnification is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itrequested under Section 3(a) and it has been adjudicated finally by a court of competent jurisdiction that, in its sole discretion connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act in good faith and at its sole expensein a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, may electwith respect to any criminal action or proceeding, and Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder. (ii) reasonably cooperate(sIf indemnification is requested under Section 3(b) and (A) it has been adjudicated finally by a court of competent jurisdiction that, in connection with the Discloser in protecting such confidential or proprietary nature subject of the Confidential Information Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder; or (B) it has been adjudicated finally by a court of competent jurisdiction that must Indemnitee is liable to the Company with respect to any claim, issue or matter involved in the Proceeding out of which the claim for indemnification has arisen, including, without limitation, a claim that Indemnitee received an improper personal benefit, no Indemnifiable Expenses shall be so disclosed (paid with respect to such duty claim, issue or matter unless the Court of cooperation not requiring Chancery or another court in which such Proceeding was brought shall determine upon application that, despite the Recipient or Recipient’s Affiliates adjudication of liability, but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)indemnity for such Indemnifiable Expenses which such court shall deem proper.

Exceptions. The obligations imposed Notwithstanding the forgoing, a Holder will not be required to comply with Section 4.2 above in connection with any specific Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Holder in connection with the Proposed Sale are limited to (1) hereof shall representations and warranties related to authority, ownership of the Shares held by such Holder and the ability to convey title to such Shares, including but not applylimited to representations and warranties that (i) the Holder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatCompany’s securities such Holder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Holder have been duly executed by the Holder and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Holder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from Holder’s obligations thereunder, will cause a breach or violation of the Discloser terms of any agreement, law or Discloser’s Affiliatesjudgment, order or decree of any court or governmental agency; and (2) such other standard and customary representations and warranties made by stockholders in connection with a Sale of the Company; (b) wasthe Holder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, or becomes through no breach of other than the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; Company; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than liability for indemnification, if any, of such Holder in the Discloser or Discloser’s Affiliates under circumstances not involving any breach Proposed Sale and for the inaccuracy of any confidentiality obligation between representations and warranties made by the Company in connection with such source Proposed Sale, is several and not joint with any other Person, and is pro rata in accordance with the Discloser or Discloser’s affiliates; portion of the proceeds received by such Holder in the Sale of the Company; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference liability shall be limited to the Discloser’s Confidential Informationamount of consideration actually paid to such Holder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Holder related to authority, ownership of the Shares held by such Holder and the ability to convey title to such Shares, (ii) any covenants made by such Holder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such Holder, the liability for which need not be limited; or and (e) is required to be disclosed by law or applicable legal processupon the consummation of the Proposed Sale, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give each holder of a series of Preferred Stock will receive the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek same amount of consideration per share of such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electseries of Preferred Stock, and (ii) reasonably cooperate(s) with each holder of Common Stock will receive the Discloser in protecting such confidential or proprietary nature same amount of the Confidential Information that must be so disclosed (with such duty consideration per share of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Common Stock.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Series A Preferred Stock will receive the same amount of consideration per share of such series of Series A Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the Series A Preferred Stock elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Series A Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Series A Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Series A Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (f) subject to clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 2.6(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (i) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such shares of Capital Stock, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatshares of Capital Stock such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from the Discloser Stockholder’s obligations thereunder, will cause a breach or Discloser’s Affiliates; (b) was, or becomes through no breach violation of the Recipient’s terms of any agreement, law or judgment, order or decree of any court or governmental agency; (ii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any of its Affiliates’) obligations hereunderother Person in connection with the Proposed Sale, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any confidentiality obligation between stockholder of any of identical representations, warranties and covenants provided by all stockholders); (iii) the liability for indemnification, if any, of such source Stockholder in the Proposed Sale and for the Discloser or Discloser’s affiliates; (d) is independently developed inaccuracy of any representations and warranties made by the Recipient Company or the Recipient’s Affiliatesits Stockholders in connection with such Proposed Sale, without is several and not joint with any use of or reference other Person (except to the Discloserextent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (iv) liability shall be limited to such Stockholder’s Confidential Information; applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (v) upon the consummation of the Proposed Sale, (A) each holder of each class or series of Common Stock, Preferred Stock and Derivative Securities will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of Common Stock, Preferred Stock and Derivative Securities, (eB) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is required to be disclosed received by law or applicable legal processother holders in respect of their shares of such same series, provided that (C) each holder of Common Stock will receive the Recipient or same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall holders of (i) give at least sixty-five percent (65%) of the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, then outstanding shares of Series C Preferred Stock and (ii) reasonably cooperate(sat least sixty percent (60%) of the then outstanding shares of Series B Preferred Stock elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of Common Stock, Preferred Stock and Derivative Securities shall be allocated among the holders of Common Stock, Preferred Stock and Derivative Securities on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Discloser Restated Certificate in protecting effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for a Key Holder’s Common Stock, Preferred Stock and Derivative Securities or an Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, pursuant to this Section 2.6(b)(ii) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such confidential securities or proprietary nature of any Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Confidential Information Key Holder’s Common Stock, Preferred Stock and Derivative Securities or the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, that must be so disclosed would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (with as determined in good faith by the Company) of the securities which such duty Key Holder or Investor would otherwise receive as of cooperation not the date of the issuance of such securities in exchange for the Key Holder’s Common Stock, Preferred Stock and Derivative Securities or the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable; and (vi) subject to Section 2.6(b)(ii) above requiring the Recipient same form of consideration to be available to the holders of any single class or Recipientseries of Common Stock, Preferred Stock and Derivative Securities, if any holders of any Common Stock, Preferred Stock and Derivative Securities are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such Common Stock, Preferred Stock and Derivative Securities will be given the same option; provided, however, that nothing in this Section 2.6(b)(iii) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s Affiliates failure to initiate satisfy any condition, requirement or participate in any litigation or incur more than de minimis out-of-pocket costs)limitation that is generally applicable to the Company’s stockholders.

Exceptions. The Notwithstanding the foregoing, no Athyrium Investor will be required to comply with section above in connection with any Sale of the Company unless: (A) any representations and warranties to be made by such Athyrium Investor in connection with the Sale of the Company are limited to representations and warranties related to authority, ownership and the ability to convey title to such Warrant Shares, including and limited to representations and warranties that (w) any escrow of proceeds of any such transaction shall be withheld on at least a pro rata basis among all stockholders of the Company, (x) such Athyrium Investor holds all right, title and interest in and to the Warrant Shares such Athyrium Investor purports to hold, free and clear of all liens and encumbrances, (y) the obligations imposed of such Athyrium Investor in connection with the transaction have been duly authorized, if applicable, and (z) the documents to be entered into by section 8(bsuch Athyrium Investor have been duly executed by such Athyrium Investor and delivered to the acquirer and are enforceable against such Athyrium Investor in accordance with their respective terms; (B) hereof subject to the applicable provisions of the Certificate of Incorporation, the liability of an Athyrium Investor shall not applybe limited to such Athyrium Investor’s pro rata share (determined in proportion to proceeds received by such Athyrium Investor in connection with such Sale of the Company in accordance with the applicable provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount but that in no event shall that amount exceed the amount of consideration actually paid to such Athyrium Investor in connection with such Sale of the Company; except with respect to (x) representations and warranties of such Athyrium Investor relating to authority, ownership and ability to convey title to such Warrant Shares, (y) any covenants made by such Athyrium Investor with respect to confidentiality or voting related to the Sale of the Company, or shall cease (z) claims related to applyfraud or willful breach by such Athyrium Investor, to any Confidential Information the liability for each of which may exceed the limitation set forth above, if or when, and to the extent thatthat such additional liability has been approved by and borne by the Requisite Holders (as defined in the Certificate of Incorporation); and (C) upon the consummation of the Sale of the Company, (w) each holder of shares of any series of the Preferred Stock and each holder of Common Stock will receive the same form of consideration for their shares of Preferred Stock and Common Stock, respectively, as each other holder of Preferred Stock and Common Stock, respectively, (x) each holder of a series of Preferred Stock will receive the same value of consideration per share of such Confidential Information: series of Preferred Stock, (ay) was known each holder of Common Stock will receive the same value of consideration per share of Common Stock, and (z) unless elected by the holders of the Preferred Stock in accordance with the Certificate of Incorporation, the aggregate consideration receivable by all holders of any series of Preferred Stock and Common Stock shall be allocated among the holders of such Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the Recipient holders of each respective series of such Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event or Deemed Liquidation Event as defined in and pursuant to Section IV.C.2(a) and (c) of the Recipient’s Affiliates Certificate of Incorporation, and assuming for this purpose that the Sale of the Company is a Deemed Liquidation Event) in accordance with the Certificate of Incorporation in effect immediately prior to the receipt Sale of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Company.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 7.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; and (d) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s Affiliates stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock and (iii) unless the holders of (x) a majority of the Preferred Stock elect to receive a lesser amount by written notice given to the Company at least three (3) days prior to the receipt effective date of any such Proposed Sale, , the aggregate consideration receivable by all holders of Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the Confidential Information from relative liquidation preferences to which the Discloser or Discloserholders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Affiliates; (b) was, or becomes through no breach Certificate of the Recipient’s (or any of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 7.2(d) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (ey) is required the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be disclosed by law paid to any such Key Holder or applicable legal processInvestor in lieu thereof, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature against surrender of the Confidential Information that must be so disclosed Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (with as determined in good faith by the Company) of the securities which such duty Key Holder or Investor would otherwise receive as of cooperation not requiring the Recipient date of the issuance of such securities in exchange for the Key Holder Shares or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Investor Shares, as applicable.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 1.3(a) above in connection with any proposed Drag-Along Transaction unless: (i) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Drag-Along Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aB) was known the obligations of the Stockholder in connection with the Drag-Along Transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient or Drag-Along Offeror and are enforceable against the Recipient’s Affiliates prior Stockholder in accordance with their respective terms, and (D) neither the execution and delivery of documents to be entered into in connection with the receipt Drag-Along Transaction, nor the performance of the Confidential Information from the Discloser Stockholder’s obligations thereunder, will cause a breach or Discloser’s Affiliates; (b) was, or becomes through no breach violation of the Recipient’s terms of any agreement, law or judgment, order or decree of any court or governmental agency by which such Stockholder is subject or bound; (ii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any of its Affiliates’) obligations hereunderother Person in connection with the Drag-Along Transaction, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach Company; (iii) the liability for indemnification, if any, of such Stockholder in the Drag-Along Transaction and for the inaccuracy of any confidentiality obligation between such source representations and the Discloser or Discloser’s affiliates; (d) is independently developed warranties made by the Recipient Company in connection with such Drag-Along Transaction, is several and not joint with any other Person, and is pro rata in accordance with the consideration received by such Stockholder; (iv) the Stockholder shall not, in connection with such Drag-Along Transaction, be required to sign a non-compete agreement or the Recipient’s Affiliates, without agree to any use of or reference non-compete covenant; (v) liability shall be limited to the Discloseramount of consideration actually paid to such Stockholder in connection with such Drag-Along Transaction; and (vi) upon the consummation of the Drag-Along Transaction, each holder of each class or series of the Company’s Confidential Information; stock will receive the same form and amount of consideration for each of its Shares of such class or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof series as is reasonably practicable so that the Discloser may seek received by each other holder in respect of each of its Shares of such protective orders same class or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature series of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stock.

Exceptions. The obligations imposed Notwithstanding the forgoing, a Shareholder will not be required to comply with Section 2.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Shareholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Shareholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the Recipient acquirer and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company; (c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is pro rata in accordance with such Shareholder’s Affiliates relative stock ownership of the Company (but reflecting the overall priority of the Common Shares and the Preferred Shares, with any theoretical indemnification liability to be treated as a reduction of the purchase price for the purpose of allocating the proceeds thereof); (d) liability shall be limited to the amount of consideration actually paid to such Shareholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Shareholder related to authority, ownership and the ability to convey title to such Shares, (ii) any covenants made by such Shareholder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such Shareholder, the liability for which need not be limited; (e) upon the consummation of the Proposed Sale, (i) each holder of the Preferred Shares and each holder of Common Shares will receive the same form of consideration for their Preferred Shares and their Common Shares, (ii) each holder of the Series B Preferred will receive the same amount of consideration per share of the Series B Preferred (iii) each holder of the Series A Preferred will receive the same amount of consideration per share of the Series A Preferred, (iv) each holder of the Common Shares will receive the same amount of consideration per share of the Common Shares, and (v) unless the holders of at least a majority of the Preferred Shares, voting together as a single class, elect otherwise by written notice given to the Company at least ten (10) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Series B Preferred, the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach Series A Preferred and the Common Shares shall be allocated among the holders of the RecipientSeries B Preferred, the Series A Preferred and the Common Shares on the basis of the relative liquidation preferences to which the holders of the Series B Preferred, the Series A Preferred and the holders of the Common Shares are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Articles of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the public; Proposed Sale; (cf) becomes known subject to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or clause (e) is required above, requiring the same form of consideration to be disclosed received by law or applicable legal processthe holders of the Common Shares and the Preferred Shares, provided that if any holders of any capital stock of the Recipient or Company are given an option as to the Recipient’s Affiliate(sform and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (g) making in the case of the Investors, such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Proposed Sale (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders provides solely for cash consideration or other confidentiality protection as itmarketable securities, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) provides for the payment of consideration in a manner consistent with the Discloser in protecting such confidential or proprietary nature provisions of Section 3 of Part A of the Confidential Information that must be so disclosed Company’s Articles of Incorporation and (with iii) to the extent the Investors retain an equity interest in the Company or any successor entity following the consummation of such duty Proposed Sale, does not contain terms or conditions which would require any approval of cooperation the Preferred Shares pursuant to Section 2(b) of Part A of the Company’s Articles of Incorporation which has not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)been obtained.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding any provision in this Agreement, the Company shall not apply, be obligated under this Agreement to make any indemnity in connection with any Proceeding (or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: part of any Proceeding): (a) was known for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; amount paid; (b) wasinitiated by Indemnitee prior to a Change in Control, or becomes through no breach of the Recipient’s , including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its Affiliates’directors, officers, employees, agents or other indemnitees, unless (i) obligations hereunderthe Company’s board of directors authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation; (ii) the Company provides the indemnification, known in its sole discretion, pursuant to the publicpowers vested in the Company under applicable law; (ciii) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) indemnification is required to be disclosed made under Section 10(e); (iv) otherwise required by applicable law; or (v) indemnification is in connection with actions or Proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Company’s articles of incorporation or bylaws now or hereafter in effect relating to such Proceeding; (c) for any acts or omissions or transactions from which a director may not be relieved of liability as set forth in the exception to Section 204(a)(10) of the California General Corporation Law or as to circumstances in which indemnity is expressly prohibited by Section 317 of the California General Corporation Law; (d) for an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or applicable legal processcommon law, provided if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (e) for Expenses incurred by Indemnitee with respect to any action in which Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in the best interests of the Company; (f) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, to the extent required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Recipient Company pursuant to Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give payment to the Discloser as much prior notice thereof as is reasonably practicable so that Company of profits arising from the Discloser may seek such protective orders or other confidentiality protection as it, purchase and sale by Indemnitee of securities in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature violation of Section 306 of the Confidential Information that must be so disclosed ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), if Indemnitee is held liable therefor (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates including pursuant to initiate or participate in any litigation or incur more than de minimis out-of-pocket costssettlement arrangements); or (g) if otherwise prohibited by applicable law.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by section 8(b) hereof shall the Company or its Stockholders in connection with such Proposed Sale, is several and not apply, or shall cease to apply, to joint with any Confidential Information if or when, and other Person (except to the extent thatthat funds may be paid out of an escrow established to cover breach of representations, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt warranties and covenants of the Confidential Information from Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the Discloser or Discloser’s Affiliates; amount of consideration paid to such Stockholder in connection with such Proposed Sale; (b) was, or becomes through no breach upon the consummation of the RecipientProposed Sale, (A) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their Shares of such same class or series of stock and (B) each holder of a class of Common Stock will receive the same amount of consideration per share of such class of Common Stock as is received by other holders in respect of their Shares of such same class; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of its Affiliates’) obligations hereunderany information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, known as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the publicfair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and (c) becomes known subject to clause (b) above, requiring the same form of consideration to be available to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach holders of any confidentiality obligation between such source and single class or series of capital stock, if any holders of any capital stock of the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference Company are given an option as to the Discloser’s Confidential Information; or (e) is required form and amount of consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Subsection 3.3(c) shall entitle any Stockholder to receive any form of consideration that such Stockholder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring Stockholder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed Sections 10(c), (d), (e) and (f) do not apply to (i) the issuance of any Capital Stock or Capital Stock Equivalents issued pursuant to Employee Stock Program Grants, (ii) the issuance by section 8(ba Purchaser Entity following a Qualified Public Offering of any shares of any publicly traded class of Capital Stock pursuant to an employee stock purchase plan or pursuant to a dividend reinvestment plan, (iii) hereof shall not applyissuances made by a Purchaser Entity solely to other Purchaser Entities, (iv) the issuance of Capital Stock pursuant to any Warrant or Three-Year Warrant, (v) any arm’s-length transaction for a bona fide business purpose with a third party which has been approved by a majority of the disinterested directors of the issuing Purchaser Entity or by the disinterested directors of the Company if the issuing Purchaser Entity has no disinterested directors, (vi) any transaction for a bona fide business purpose with. an Affiliate that is determined to have been fair by a majority of the disinterested directors of the issuing Purchaser Entity or by the disinterested directors of the Company if the issuing Purchaser Entity has no disinterested directors, (vii) any of the transactions described by Section 9, (viii) with respect to Sections 10(c) and 10(d), the issuance of Capital Stock upon the conversion, exercise or exchange of any Capital Stock Equivalents for which an adjustment has been made pursuant to Section 10(e) or 10(f) or for which no adjustment was required pursuant to Section 10(e),10(f), or 10(i) or (ix) the issuance of securities to Persons providing debt financing; provided, however, that this clause (ix) shall cease apply to apply, securities issued to any Confidential Information a Person that is Affiliated with an Affiliate of the Company only if or when, and to the extent thatsuch Person (A) did not negotiate the terms of such debt financing, such Confidential Information: (aB) was known receives no more than 20% of the securities issued to the Recipient or Persons providing such debt financing and (C) receives no more than its pro rata share of the Recipient’s Affiliates prior securities issued to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between Persons providing such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)debt financing.

Exceptions. The obligations imposed by section 8(b) hereof Any other provision herein to the contrary ---------- notwithstanding, the Company shall not apply, or shall cease to apply, to any Confidential Information if or when, and be obligated pursuant to the extent that, such Confidential Information: terms of this Agreement: (a) was known to indemnify or advance expenses to the Recipient Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the Recipient’s Affiliates prior Indemnitee and not by way of defense, except with respect to proceedings specifically authorized by the receipt Board or brought to establish or enforce a right to indemnification and/or advancement of expenses arising under this Agreement, the charter documents of the Confidential Information from Company or any subsidiary or any statute or law or otherwise, but such indemnification or advancement of expenses may be provided by the Discloser or Discloser’s AffiliatesCompany in specific cases if the Board finds it to be appropriate; or (b) wasto indemnify the Indemnitee hereunder for any amounts paid in settlement of a proceeding unless the Company consents in advance in writing to such settlement, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the publicwhich consent shall not be unreasonably withheld; or (c) becomes known to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the Recipient provisions of Section l6(b) of the Securities Exchange Act of 1934 and amendments thereto or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach similar provisions of any confidentiality obligation between such source and the Discloser federal, state or Discloser’s affiliateslocal statutory law; or (d) to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is independently developed by not lawful. In this respect, the Recipient or Company and the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided Indemnitee have been advised that the Recipient or Securities and Exchange Commission takes the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give position that indemnification for liabilities arising under the Discloser as much prior notice thereof as federal securities laws is reasonably practicable so against public policy and is, therefore, unenforceable and that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must claims for indemnification should be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates submitted to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)appropriate courts for adjudication.

Exceptions. The obligations imposed Notwithstanding anything to the contrary in Section 5.3(a), at any time prior to (but not after) 11:59 p.m. New York City time on the Threshold Date, and notwithstanding the execution and delivery to the Company of the Stockholder Written Consent, the Company and its Representatives may (i) provide information in response to a request therefor by section 8(ba Person who has made an Acquisition Proposal after the execution of this Agreement if the Company (x) hereof shall did not applyviolate Section 5.3(a) in any material respect with respect to such Person or Acquisition Proposal, and entered into with such Person a confidentiality agreement executed by such Person and the Company which (A) is on terms that, taken as a whole, are not materially less restrictive to such Person than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making, or shall cease amendment, of an Acquisition Proposal) and (B) does not contain any provisions that prohibit the Company from complying with its obligations pursuant to applythis Section 5.3 (any confidentiality agreement satisfying the criteria of this clause (b) being, an “Acceptable Confidentiality Agreement”)), and (y) promptly (and in any event within twenty-four (24) hours thereafter) makes available to Parent any non-public information concerning the Company or the Company Subsidiaries that the Company provides to any Confidential Information such Person that was not previously made available to Parent; (ii) engage or participate in any discussions or negotiations pursuant to an Acceptable Confidentiality Agreement with any Person who has made such an Acquisition Proposal; or (iii) after having complied with Section 5.3(e), authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if or when, and only to the extent that, such Confidential Information: (aA) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or taking any action described in any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall clauses (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) above, the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) based on information then available that (x) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably cooperate(slikely to result in a Superior Proposal and (y) the failure to take any such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (B) prior to taking any action described in the Discloser foregoing clause (iii) above, the Company Board has determined in protecting good faith (after consultation with its financial advisor and outside legal counsel) that such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Acquisition Proposal is a Superior Proposal.

Exceptions. None of the limitations provided for in Section 7.2 or in this Section 7.3 shall apply to the obligation of the Indemnifying Party to indemnify for Losses as a result of, arising out of or in connection with acts, facts, events, liabilities or omissions relating to fraud, gross negligence or willful misconduct. The obligations imposed Parties further acknowledge that, in the event of any fact, matter, event, or circumstance giving rise to Claims for an amount which the Company is entitled to seek or obtain indemnification, reimbursement, or any other form of recovery from any Third-Party in connection with M&A transactions to which the Company is or has been a party, whether under any provision of the relevant M&A agreement, applicable Law, insurance policy, or otherwise, and regardless of the existence of any guarantee for such indemnification, the Company shall first seek recovery from such Third-Party and to first enforce any guarantees held by section 8(bthe Company in connection therewith, including by accessing any available balances maintained in the Escrow Accounts. The Buyer shall be deemed to have satisfied such obligation only after having exhausted all such guarantees and has pursued all available extrajudicial remedies against such Third-Party. Notwithstanding the foregoing, if, after a period of ninety (90) hereof days from the date such extrajudicial remedies were initiated, the Buyer has not received the full amount of the Losses from the applicable Third Party, the Seller shall indemnify the Buyer for the portion of the Losses that remains unpaid. The failure or inability to finally settle, perform, or otherwise satisfy its indemnification or reimbursement obligations, shall not applylimit, reduce, or otherwise affect the Seller’s indemnification obligations under this Agreement, and the Buyer shall cease remain entitled to applyseek recovery directly from the Seller, in the extent of the portion of the Losses that remains uncovered after exhaustion of such remedies. Notwithstanding the Seller’s obligation to indemnify the Buyer for the portion of the Losses that remains unpaid, the Buyer shall (and shall cause the Company to) continue to use all reasonable efforts, whether through judicial or extrajudicial measures, to any Confidential Information if or when, and to pursue the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information indemnification from the Discloser or Discloser’s Affiliates; (b) wasrelevant Third-Party. The Seller may, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expensediscretion, may electassume and conduct such recovery efforts, on the terms and (ii) reasonably cooperate(s) with subject to the Discloser procedures set forth in protecting such confidential or proprietary nature Section 7.6.2. Any indemnification recovered by the Company as a result of the Confidential Information that must efforts provided for in this Section shall be so disclosed (with such duty treated as Contingent Assets for purposes of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)this Agreement.

Exceptions. The obligations imposed by section 8(bNotwithstanding anything to the contrary in this Agreement, prior to the time, but not after, the Requisite Company Vote is obtained, the Company and its Representatives may (A) hereof furnish, make available or provide access to non-public information with respect to the Company or its Subsidiaries to a Person who has made a bona fide written Acquisition Proposal that did not result from a material breach of this Section 6.2 if the Company has received or receives from such Person an executed confidentiality agreement on terms that, taken as a whole, are not less restrictive to the other party than those contained in the Confidentiality Agreement (as defined in Section 9.7), provided that such Confidentiality Agreement need not contain any standstill or similar provision prohibiting the making of any Acquisition Proposal, it being understood that such confidentiality agreement shall not applyinclude any term that would prevent the Company from complying with its obligations under this Section 6.2 (any confidentiality agreement satisfying the criteria of this clause (A) being referred to as an “Acceptable Confidentiality Agreement”), and promptly (and in any event within forty-eight (48) hours thereafter) makes available to Parent and Merger Sub any such information concerning the Company or shall cease to apply, its Subsidiaries that the Company or its Representatives provides to any Confidential Information such Person and that was not previously made available to Parent or Merger Sub; (B) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written Acquisition Proposal; or (C) after having complied with Section 6.2(f), authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal; if or when, and only to the extent that, such Confidential Information: (ax) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; taking any action described in clause (bA), (B) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (eC) is required above, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would be disclosed by law inconsistent with the directors’ duties under applicable Law, (y) in each such case referred to in clause (A), (B) or applicable (C), the Company Board has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal process, provided counsel that the Recipient such Acquisition Proposal either constitutes a Superior Proposal or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is would reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, be expected to result in its sole discretion and at its sole expense, may electa Superior Proposal, and (iiz) reasonably cooperate(sin the case referred to in clause (C) above, the Company Board has determined in good faith, after consultation with the Discloser in protecting its financial advisor and outside legal counsel, that such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Acquisition Proposal constitutes a Superior Proposal.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and Notwithstanding anything contained in this Agreement to the extent thatcontrary, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates at any time prior to the receipt of the Confidential Information Company Shareholder Approval: (i) the Company (including the Special Committee or the Board of Directors acting solely in accordance with the recommendation of the Special Committee), directly or indirectly through its or their Representatives, may (A) engage in negotiations or discussions with any Third Party and its Representatives that has made an unsolicited offer, inquiry, proposal or indication of interest with respect to an Acquisition Proposal not resulting, in whole or in part, from a breach, in any material respect, of this ‎Section 6.04, if the Discloser Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or Discloser’s Affiliates; the Special Committee has reasonably determined in good faith, after consultation with its outside legal counsel and financial advisor, based on information then available, that (b1) wassuch Acquisition Proposal constitutes, or becomes through no breach of would reasonably be expected to lead to, a Superior Proposal and (2) failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties to the Recipient’s Company shareholders under Applicable Law and (B) furnish to such Third Party or its Representatives (after making the determination set forth in the foregoing clause (A)) information relating to the Company or any of its Affiliates’) obligations hereunder, known Subsidiaries and afford access to the publicbusiness, properties, assets, books or records of the Company or any of its Subsidiaries pursuant to and in accordance with an Acceptable Confidentiality Agreement; provided that, to the extent that any information relating to the Company or its Subsidiaries is provided to any such Third Party or any such Third Party is given access, in each case which was not previously provided to or made available to Parent in connection with this transactions contemplated hereby, such information or access is provided or made available to Parent substantially concurrently with, or promptly following, the time such Third Party is provided such information or access; and (ii) subject to compliance with the rest of this ‎Section 6.04 (including ‎Section 6.04(d)), the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee may, (A) in response to an unsolicited offer, inquiry, proposal or indication of interest with respect to a written Acquisition Proposal not resulting, in whole or in part, from a breach, in any material respect, of this ‎Section 6.04 and that the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee has determined in good faith, after consultation with its outside legal counsel and financial advisor, constitutes a Superior Proposal, make an Adverse Recommendation Change or terminate this Agreement pursuant to and in accordance with ‎Section 10.01(d)(i) in order to enter into a definitive agreement for a Superior Proposal, or (B) in response to an Intervening Event, make an Adverse Recommendation Change, if, in each case of clauses (A) and (B), the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee determines in good faith, after consultation with its outside legal counsel and financial advisor, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company shareholders under Applicable Law. For the avoidance of doubt, the Company may not terminate this Agreement pursuant to ‎Section 10.01(d)(i) unless it pays, or causes to be paid, to Parent the Termination Fee immediately prior to or concurrently with such termination, in accordance with Section 11.04. In addition, nothing contained herein shall prevent the Company or the Board of Directors (acting solely in accordance with the recommendation of the Special Committee) or the Special Committee from (A) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act or Item 1012(a) of Regulation M-A promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer) with respect to an Acquisition Proposal (provided that neither the Company nor the Board of Directors nor the Special Committee may recommend any Acquisition Proposal unless permitted by Section 6.04(b)(ii) and even if permitted by the foregoing, is subject to the rights of Parent set forth in this Agreement); (cB) becomes known to issuing a “stop, look and listen” disclosure or similar communication of the Recipient or Recipient’s Affiliates from sources other than type contemplated by Rule 14d-9(f) under the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information1934 Act; or (eC) making any disclosure not related to an Acquisition Proposal to the shareholders of the Company that is required by Applicable Law or with respect to which the Special Committee determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would reasonably be expected to be disclosed inconsistent with its fiduciary duties under Applicable Law. The Company shall cause each of its and its Subsidiaries’ Representatives to comply with this Section 6.04 and shall be responsible for any breach by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Representatives hereof (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itthan, in its sole discretion and at its sole expenseeach case, may electany Representatives that are also Representatives or Affiliates of Parent, and (ii) reasonably cooperate(s) with the Discloser in protecting or that are Representatives of such confidential or proprietary nature Affiliates of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costsParent).

Exceptions. The obligations imposed by section 8(b) hereof shall not applyNotwithstanding the foregoing, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known Owner shall be entitled to assign its right, title and interest in and to this Agreement (and, in particular, any rights arising in relation to any insurance policy and any other right to collect any amount from Contractor) to the Recipient or Financing Parties by way of security for the Recipient’s Affiliates prior performance of obligations to such Financing Parties without the receipt consent of Contractor who, subject to any consent entered into by Contractor with the Confidential Information from Financing Parties, may further assign such rights, title and interest under this Agreement upon exercise of remedies by a Financing Party following a default by Owner under the Discloser or Discloser’s Affiliates; financing agreements entered into between Owner and the Financing Parties and (b) waseach Party shall be entitled to assign its right, or becomes through no breach of the Recipient’s (or obligation, title and interest in and to this Agreement to any of its Affiliates’) obligations hereunderAffiliates or in connection with a merger or acquisition of substantially all of the assets of a Party, known subject to the public; Contractor Performance Security and Equity Contribution Agreement, as applicable, and continued validity thereof. Contractor shall execute any consent and agreement or similar documents with respect to such an assignment described in subclause (ca) becomes known as the Financing Parties may reasonably request and acknowledges that such consent and agreement or similar document (which shall be reasonably acceptable to Contractor) may, among other things, require Contractor to give the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving Financing Parties notice of, and an opportunity to cure, any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSof this Agreement by Owner. Contractor shall reasonably cooperate with Owner in the negotiation and execution of any reasonable amendment or addition to this Agreement required by the Financing Parties; provided, however, that Contractor shall not be obligated without a Change Order under Section 11.4(b) to accept any undertaking imposed by any Financing Party which Contractor reasonably believes will have an actual and demonstrable increase in Contractor's costs and/or schedule. Contractor shall, at Owner's cost and subject to the confidentiality provisions set forth in Article 25, make available to the Financing Parties and other Persons involved in the financing or refinancing of the Facility who have a need-to-know (ie.g., counsel to a lender or any such other Person, Governmental Authority, underwriters, rating agencies, independent reviewers and feasibility consultants) give such information in the Discloser control of Contractor (including financial information concerning Contractor) as much prior notice thereof as is may reasonably practicable so that be requested by Owner on behalf of the Discloser may seek such protective orders Financing Parties or other confidentiality protection as itthe Financing Parties' engineer with respect to financing of the Project or the Facility. Contractor further agrees that, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) connection with the Discloser in protecting such confidential financing or proprietary nature refinancing of the Confidential Information that must Facility, Contractor shall, at the request and expense of Owner, provide an opinion of counsel as to the enforceability against Contractor of this Agreement until expiration of the last Warranty Period. Any authorized assignment of this Agreement by either Party shall relieve such Party of its obligations hereunder at such time as the authorized successor agrees in writing to be so disclosed (with bound by such duty assigning Party's obligations hereunder. Any purported assignment of cooperation not requiring the Recipient or Recipient’s Affiliates this Agreement in violation of this Section 26.2 shall be null and void and shall be ineffective to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)relieve either Party of its obligations hereunder.

Exceptions. The obligations imposed by section 8(b) hereof shall not applyNotwithstanding Section 11.1, or shall cease to applya Stockholder, to its Affiliates and their Agents may disclose any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to any Governmental Entity in connection with applications for approval of the transactions contemplated hereby and the other Transaction Documents (or, in the case of any regulated Affiliate of a Stockholder, in connection with audits by the applicable Governmental Entities), (b) to financial institutions in connection with financings of the transactions contemplated hereby, (c) in the case of any Stockholder, (i) to a bona fide potential Transferee if such Stockholder desires to undertake any Transfer of its capital stock permitted by these Bylaws, (ii) to its stockholders, limited partners, members, trust beneficiaries or other equityholders, as the case may be, all materials made available to such Stockholder pursuant to the Recipient terms of these Bylaws and (iii) to its indirect stockholders, limited partners, members, trust beneficiaries or other equityholders, as the Recipient’s Affiliates case may be, so long as the Confidential Information disclosed to such Persons is limited to the materials delivered to such party pursuant to Section 4.4(a), provided that (A) in the case of subclauses (i), (ii) and (iii) of this clause (c), prior to the receipt disclosure of any Confidential Information, such Person shall execute an agreement containing substantially the terms set forth in Section 11.1 and this Section 11.2, and (B) in the case of clauses (ii) and (iii) above, the disclosure of Confidential Information relating to commercial transactions or commercial relationships of the Confidential Information from Company and its Subsidiaries shall be strictly limited to such Persons who have an actual need to know such information in connection with the Discloser administration of their equity interest in such Stockholder, (d) to any rating or Discloser’s Affiliates; (b) was, similar agency in connection with its analysis or becomes through no breach review of the Recipient’s (Company or any of its Affiliates’) obligations hereunderSubsidiaries, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required in the case of the GM Trust, between such trust and its trustee and Agents, and (f) to any other Person if such party becomes compelled by Law (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand, mandatory provision of Law, regulation or stock exchange rule) to disclose any of the Confidential Information. In addition, each Stockholder may report to its stockholders, limited partners, members, trust beneficiaries or other equityholders, as the case may be, the general status of such Stockholder’s investment in the Company (without disclosing specific Confidential Information). A disclosing Stockholder shall be disclosed responsible for a breach by law or applicable legal processany third Person to whom such disclosing Stockholder discloses Confidential Information in accordance with the terms of subclauses (c)(ii) and (c)(iii) of this Section 11.2. In the case of clause (f) above, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. disclosing party shall (i) give provide the Discloser as much prior other parties hereto with prompt written notice thereof as is reasonably practicable of such requirement so that the Discloser such non-disclosing parties may seek such a protective orders order or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, appropriate remedy or waive compliance with the terms of this Article XI and (ii) take such reasonable legally available steps as the non-disclosing parties may reasonably cooperate(s) request to resist or narrow such requirement (at the expense of the non-disclosing parties). In the event that such protective order or remedy is not obtained, or that the non-disclosing parties waive compliance with the Discloser in protecting such confidential or proprietary nature terms hereof, the disclosing party agrees to furnish only that portion of the Confidential Information that must it is advised by counsel is required to be so disclosed (with furnished, and to exercise its commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Confidential Information.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give Subject to Section 7.2(a)(i)(B) and (D), the Discloser Board of Trustees shall exempt an Individual from the Ownership Limit and may establish or increase an Excepted Holder Limit for such Individual if: (A) the Board of Trustees obtains such representations and undertakings from such Individual as much prior notice thereof as is reasonably practicable so that are satisfactory to the Discloser may seek such protective orders or other confidentiality protection as itBoard of Trustees, in its sole discretion and at absolute discretion, to ascertain that no Individual’s Beneficial or Constructive Ownership of such Equity Shares will violate Section 7.2(a)(i)(B) or (D); (B) such Individual does not and represents that it will not own, actually or Constructively, an interest in a tenant of the Trust (or a tenant of any entity owned or controlled by the Trust) that would cause the Trust to own, actually or Constructively, more than a 9.8 percent interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Board of Trustees obtains such representations and undertakings from such Individual as are satisfactory to the Board of Trustees, in its sole expenseand absolute discretion, may electto ascertain this fact (for this purpose, a tenant from whom the Trust (or an entity owned or controlled by the Trust) derives (and is expected to continue to derive) a sufficiently small amount of revenue such that, in the opinion of the Board of Trustees, rent from such tenant would not adversely affect the Trust’s ability to qualify as a REIT, shall not be treated as a tenant of the Trust); (C) such Person provides to the Board of Trustees such representations and undertakings, if any, as the Board of Trustees may, in its sole and absolute discretion, require to ensure that the conditions in clauses (i) and (ii) reasonably cooperate(shereof are satisfied and will continue to be satisfied throughout the period during which such Individual Beneficially or Constructively Owns Equity Shares in excess of the Ownership Limit pursuant to any exemption thereto granted under this subparagraph (a); and (D) such Individual agrees that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in Sections 7.2(a) through 7.2(f)) will result in such Equity Shares being automatically transferred to a Charitable Trust in accordance with Sections 7.2(a)(ii) and 7.3. (ii) Prior to granting any exception pursuant to Section 7.2(g)(i), the Board of Trustees may, in its sole and absolute discretion, require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Trustees in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Trust’s status as a REIT. Notwithstanding the receipt of any ruling or opinion, the Board of Trustees may impose such conditions or restrictions as it deems appropriate in connection with granting such exception; provided, however, that the Board of Trustees shall not be obligated to require a favorable ruling or opinion in order to grant an exception hereunder. (iii) Subject to Section 7.2(a)(i)(B) or (D), an underwriter which participates in a public offering or a private placement of Equity Shares (or securities convertible into or exchangeable for Equity Shares) may Beneficially Own or Constructively Own Equity Shares (or securities convertible into or exchangeable for Equity Shares) in excess of the Ownership Limit, but only to the extent necessary to facilitate such public offering or private placement. (iv) The Board of Trustees may only reduce the Excepted Holder Limit for an Excepted Holder: (1) with the Discloser in protecting written consent of such confidential Excepted Holder at any time, or proprietary nature (2) pursuant to the terms and conditions of the Confidential Information that must be so disclosed (agreements and undertakings entered into with such duty Excepted Holder in connection with the establishment of cooperation not requiring the Recipient or Recipient’s Affiliates Excepted Holder Limit for that Excepted Holder. No Excepted Holder Limit shall be reduced to initiate or participate in any litigation or incur more a percentage that is less than de minimis out-of-pocket costs)the Ownership Limit.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding anything contained in Section 6.01, Lessee shall not applybe required to indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section 6.01 in respect of any Expense of such Indemnitee: (a) For any Taxes, loss of Tax benefits or costs or expenses of any administrative or judicial proceedings contesting any Taxes or loss of Tax benefits, whether or not Lessee is required to indemnify therefor pursuant to Article VII or the Tax Indemnification XM-4 Participation Agreement Agreement (it being understood that all Tax indemnities are governed by the Tax Indemnification Agreement or Article VII); provided, however, this Section 6.02(a) shall cease to apply, not apply to any Confidential Information if or when, and taxes taken into account in making any payment on an After-Tax Basis; (b) Except to the extent thatattributable to acts, such Confidential Informationomissions or events occurring prior thereto, acts, omissions or events (other than acts or events related to the performance or failure to perform by Lessee of its obligations pursuant to the terms of the Operative Documents) that occur after the earlier of: (ai) was known re-delivery of Buyer’s Transponders pursuant to the Recipient terms of and in compliance with the Lease (other than pursuant to Section 16 thereof, in which case Lessee’s liability under Section 6.01 shall survive for so long as Lessor or Indenture Trustee shall be entitled to exercise remedies under such Section 16) or (ii) the Recipient’s Affiliates prior to the receipt termination of the Confidential Information from Term in accordance with the Discloser Lease (other than pursuant to Section 16 thereof, in which case Lessee’s liability under Section 6.01 shall survive for so long as Lessor or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known Indenture Trustee shall be entitled to the public; exercise remedies under such Section 16); (c) becomes known To the extent attributable to the Recipient any transfer by or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach on behalf of such Indemnitee of any confidentiality obligation between such source and the Discloser Note or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliatesinterest therein, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall except (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis for reasonable out-of-pocket costscosts and expenses incurred as a result of any such transfer pursuant to the exercise of remedies under any Operative Document resulting from an Event of Default and (ii) as otherwise required by the terms of Section 2.8 of the Indenture; (d) In the case of Expenses imposed on the Owner Participant or the Owner Trustee or any Related Indemnitee to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of Owner Participant or Owner Trustee (in each case, as an Indemnitee) of any interest in Buyer’s Transponders or the Lessor’s Estate, except for Expenses incurred as a result of (i) any Transfer made as a result of an Event of Default or while an Event of Default is continuing or (ii) any Transfer made pursuant to any requirements of any Operative Document or Effective Equity Wrap Document; (e) To the extent attributable to the gross negligence or willful misconduct of such Indemnitee or any Related Indemnitee (other than gross negligence or willful misconduct imputed to such person by reason of its interest in Buyer’s Transponders, Lessor’s Estate or any Operative Document or XM Agreement); (f) In the case of Trust Company as Indemnitee, to the extent attributable to matters enumerated in the proviso to Section 13.11; (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any Related Indemnitee contained in or made pursuant to any Operative Document; (h) To the extent attributable to the failure by such Indemnitee (other than the Indenture Trustee) or any Related Indemnitee to perform or observe any agreement, covenant or condition on its part to be performed or observed in any Operative Document; (i) To the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in Buyer’s Transponders, the Notes, the Lessor’s Estate or the Trust Agreement or any similar interest, in violation of the Securities Act or other applicable federal, state or foreign securities laws (other than any offer or sale thereof caused by the acts or omissions of Lessee); XM-4 Participation Agreement (i) With respect to any Indemnitee (other than Indenture Trustee), to the extent attributable to the failure of the Indenture Trustee to distribute funds received and distributable by it in accordance with the Indenture, (ii) with respect to any Indemnitee (other than the Owner Trustee), to the extent attributable to the failure of the Owner Trustee to distribute funds received and distributable by it in accordance with the Trust Agreement, (iii) with respect to Indenture Trustee, to the extent attributable to the gross negligence or willful misconduct of Indenture Trustee in the distribution of funds received and distributable by it in accordance with the Indenture, (iv) with respect to Owner Trustee, to the extent attributable to the gross negligence or willful misconduct of Owner Trustee in the distribution of funds received and distributable by it in accordance with the Trust Agreement; (k) With respect to any Indemnitee to the extent attributable to such amount which such Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Lessee; (l) To the extent that it is an ordinary and usual operating or overhead expense; (m) For any Lessor Lien, Owner Participant Lien or Indenture Trustee Lien attributable to such Indemnitee or any related Indemnitee; (n) To the extent another provision of an Operative Document specifies the extent of Lessee’s responsibility or obligation with respect to such Expense, or specifically provides that another party shall bear such Expense; (o) To the extent it is a Transaction Cost; (p) To the extent constituting principal, Premium Amount (if any) or interest on the Notes; or (q) To the extent incurred by or asserted against such Indemnitee as a result of any “prohibited transaction” by such Indemnitee or a Related Indemnitee, within the meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (1) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (a2) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (3) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms and (4) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency applicable to the Stockholder; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale, (1) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (2) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (3) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (4) unless (A) the Selling Investors elect otherwise with respect to a Proposed Sale for a bona fide business purpose in the interest of the stockholders in which all holders of Preferred Stock are treated fairly (and the holders of any series of Preferred Stock are not treated in a manner disproportionately adverse as compared to the holders of other series of Preferred Stock), including the retention by the Company of some existing assets in a continuing or separate entity that is not transferred to the acquirer and (B) the holders of a majority of the outstanding shares of Series C Preferred Stock elect otherwise respect to such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the receipt of the Confidential Information from the Discloser or Discloser’s AffiliatesProposed Sale; and (bf) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known subject to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information that must Company are given an option as to the form and amount of consideration to be so disclosed (with received as a result of the Proposed Sale, all holders of such duty of cooperation not requiring capital stock will be given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed by section 8(bIndemnitee shall be entitled to indemnification under ---------- Sections 3(a) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a3(b) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources above in all circumstances other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall following: (i) give the Discloser as much prior notice thereof as If indemnification is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itrequested under Section 3(a) and it has been adjudicated finally by a court of competent jurisdiction that, in its sole discretion connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act in good faith and at its sole expensein a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, may electwith respect to any criminal action or proceeding, and Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder. (ii) reasonably cooperate(sIf indemnification is requested under Section 3(b) and (A) it has been adjudicated finally by a court of competent jurisdiction that, in connection with the Discloser in protecting such confidential or proprietary nature subject of the Confidential Information Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder; or (B) it has been adjudicated finally by a court of competent jurisdiction that must Indemnitee is liable to the Company with respect to any claim, issue or matter involved in the Proceeding out of which the claim for indemnification has arisen, including, without limitation, a claim that Indemnitee received an improper personal benefit, no Indemnifiable Expenses shall be so disclosed (paid with respect to such duty claim, issue or matter unless the Court of cooperation not requiring Chancery or another court in which such Proceeding was brought shall determine upon application that, despite the Recipient or Recipient’s Affiliates adjudication of liability, but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)indemnity for such Indemnifiable Expenses which such court shall deem proper.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding any other provision of this Agreement, the Company shall not applybe obligated pursuant to the terms of this Agreement: (a) To indemnify or advance Expenses to Indemnitee with respect to Proceedings or Claims arising out of acts, omissions or transactions for which Indemnitee is prohibited from receiving indemnification under applicable law. (b) To indemnify or advance Expenses to Indemnitee with respect to Proceedings or Claims initiated or brought voluntarily by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i) with respect to actions or proceedings brought to establish or enforce a right to indemnification under this Agreement or any other agreement or insurance policy or under the Charter Documents now or hereafter in effect relating to Proceedings or Claims for Indemnifiable Events, or shall cease to apply, (ii) in specific cases if the Board of Directors of the Company has approved the initiation or bringing of such Proceeding or Claims by a majority vote of the Disinterested Directors. (c) To indemnify Indemnitee for any Expenses incurred by Indemnitee with respect to any Confidential Information action instituted (i) by Indemnitee to enforce or interpret this Agreement, if a court having jurisdiction over such action determines that each of the material assertions made by Indemnitee as a basis for such action was not made in good faith or whenwas frivolous, or (ii) by or in the name of the Company to enforce or interpret this Agreement, if a court having jurisdiction over such action determines that each of the material defenses asserted by Indemnitee in such action was made in bad faith or was frivolous. (d) To indemnify Indemnitee for Expenses, judgments, fines, penalties and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor statute. (e) To indemnify Indemnitee for Liabilities or Expenses arising from an administrative or civil enforcement action commenced by a federal banking agency to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed prohibited by the Recipient laws or the Recipient’s Affiliates, without any use regulations of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)agency.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 4.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Company Charter); (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Company Charter) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Senior Preferred Stock will receive the same amount of consideration per share of such series of Senior Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Series SRN Preferred Stock will receive the same amount of consideration per share of such series as is received by other holders in respect of their shares of such same series, (iv) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (v) the aggregate consideration receivable by all holders of the Senior Preferred Stock, Series SRN Preferred Stock and Common Stock shall be allocated among the holders of Senior Preferred Stock, Series SRN Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Senior Preferred Stock, Series SRN Preferred Stock and the holders of Common Stock are entitled in a liquidation, dissolution or winding up of the affairs of the Company (assuming for this purpose that the Proposed Sale is a liquidation, dissolution or winding up of the affairs of the Company) in accordance with the Company Charter in effect immediately prior to the receipt of the Confidential Information from the Discloser or Discloser’s AffiliatesProposed Sale; and (bf) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known subject to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electseries of capital stock, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information that must Company are given an option as to the form and amount of consideration to be so disclosed (with received as a result of the Proposed Sale, all holders of such duty of cooperation not requiring capital stock will be given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Member will not be required to comply with Section 8.1 hereof in connection with any proposed Sale of the Company unless: (a) any representations and warranties to be made by section 8(bsuch Member in connection with the Sale of the Company are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, namely (i) hereof shall not applysuch Member holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Member purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of such Confidential Information: Member in connection with the transaction have been duly authorized, if applicable, (aiii) was known the documents to be entered into by such Member have been duly executed by such Member and delivered to the Recipient acquirer and are enforceable against such Member in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of such Member’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, Law or judgment, order or decree of any court or governmental agency; (b) such Member shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Sale of the Company, other than any of the Group Companies (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of the Company of any of identical representations, warranties and covenants provided by all Members of the Company); (c) the liability for indemnification, if any, of such Member in the Sale of the Company and for the inaccuracy of any representations and warranties made by the Company in connection with such Sale of the Company, is several and not (i) joint or (ii) joint and several with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Members of the Company of any of identical representations, warranties and covenants provided by all Members of the Company), and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Sale of the Company (in accordance with the provisions of the Memorandum and Articles of Association); (d) liability shall be limited to such Member’s Affiliates applicable share (determined based on the respective proceeds payable to each Member of the Company in connection with such Sale of the Company in accordance with the provisions of the Memorandum and Articles of Association) of a negotiated aggregate indemnification amount that applies equally to all Members of the Company but that in no event exceeds the amount of consideration otherwise payable to such Member in connection with such Sale of the Company, except with respect to claims related to fraud by such Member, the liability for which need not be limited as to such Member; (e) upon the consummation of the Sale of the Company, (i) each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class or series as is received by other holders in respect of their Shares of such same class or series, (ii) each holder of a series of Preference Shares and each Option Holders will receive the same amount of consideration per Preference Share or per Option Share of such series as is received by other holders in respect of their Preference Shares or Option Shares of such same series, (iii) each holder of Ordinary Shares will receive the same amount of consideration per Ordinary Share as is received by other holders in respect of their Ordinary Shares, and (iv) unless the Majority Investors and the Series D Preference Supermajority elect otherwise by written notice given to the Company at least five (5) days prior to the receipt effective date of any such Sale of the Confidential Information from Company, the Discloser or Discloser’s Affiliates; (b) wasaggregate consideration receivable by all holders of Preference Shares, or becomes through no breach Options and Ordinary Shares shall be allocated among the holders of Preference Shares, Options and Ordinary Shares on the basis of the Recipient’s relative liquidation preferences to which the holders of each respective series of Preference Shares, the Option Holders and the holders of Ordinary Shares are entitled in a Deemed Liquidation Event (or any assuming for this purpose that the Sale of its Affiliates’the Company is a Deemed Liquidation Event) obligations hereunder, known in accordance with the Memorandum and Articles of Association in effect immediately prior to the publicSale of the Company; and (cf) becomes known subject to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; clause (d) is independently developed by above, requiring the Recipient or the Recipient’s Affiliates, without any use same form of or reference consideration to be available to the Discloser’s Confidential Information; holders of any single class or (e) is required series of Shares, if any holders of any Shares are given an option as to the form and amount of consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information that must Sale of the Company, all holders of such class or series of Shares will be so disclosed (with such duty of cooperation not requiring given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The Notwithstanding the foregoing provisions of this Section 9.5 (provided, however, that nothing in the following clauses shall permit the Company to effect a transaction, disposition, or transfer that is prohibited by the Pledge Agreement): (i) any Subsidiary of the Company may be merged or consolidated with or into, or have its assets liquidated and distributed to, the Company or any other Subsidiary of the Company; PROVIDED that (x) if any such merger or consolidation shall be with the Company, the Company shall be the Person surviving such merger or consolidation, (y) if any such merger or consolidation shall be between any Subsidiary of the Company and a Wholly Owned Subsidiary of the Company, such Wholly Owned Subsidiary shall be the Person surviving such merger or consolidation, (z) if any such merger or consolidation shall be between a Subsidiary Guarantor and a Subsidiary of the Company that is not a Subsidiary Guarantor (other than Genzyme Securities Corporation), and such Subsidiary Guarantor is not the continuing or surviving Person, then the continuing or surviving Person shall have assumed all of the obligations imposed by section 8(bof such Subsidiary Guarantor hereunder and under the other Loan Documents and (aa) hereof if any such merger or consolidation shall be between Genzyme Securities Corporation and a Subsidiary of the Company that is not applya Subsidiary Guarantor, and Genzyme Securities Corporation is not the continuing or surviving Person, then the Company and its Subsidiaries shall, or shall cease to applycause the holder of the stock in such continuing or surviving Person, to execute and deliver a Pledge Agreement in substantially the form of EXHIBIT F, together with the certificates for all shares of capital stock of the continuing or surviving Person pledged thereunder and undated stock powers; (ii) the Company and its Subsidiaries may acquire any Confidential Information if assets used or when, and useful in the lines of business permitted under Section. 9.10 or the stock or other equity interests or rights as a holder of indebtedness of any Person that is engaged in a line of business permitted to the extent that, such Confidential Information: (a) was known to Company under Section 9.10 or merge any Person that is in a line or lines of business permitted under Section 9.10 with the Recipient Company or a Subsidiary or the Recipient’s Affiliates prior Company or a Subsidiary with any such Person (provided that the conditions in the provisos in Section 9.5(d)(i) are satisfied with respect to such merger) provided that at the receipt time of the Confidential Information from consummation of any such transaction and after giving effect thereto, the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach Company shall be in compliance with the covenants in Section 9.9 as of the Recipient’s end of the most recent fiscal quarter or annual period of the Company and the transaction will not be reasonably likely to result in the noncompliance with such financial covenants; (iii) the Company or any of its Affiliates’Subsidiaries may purchase inventory and other Property to be sold or used in the ordinary course of business, make Investments permitted by Section 9.8 hereof and make Capital Expenditures in the ordinary course of its business; (iv) obligations hereunderthe Company or any Subsidiary of the Company may convey, known sell, lease, loan, transfer or otherwise dispose of any or all of its Property to the publicCompany or any other Subsidiary of the Company (and the Company or such other Subsidiary may acquire such Property); PROVIDED that if any such conveyance, sale, lease, loan, transfer or other disposition is to a Subsidiary (cother - 50 - than Genzyme Securities Corporation) becomes known that is not a Subsidiary Guarantor and relates to all or any material part of the Recipient Property of the Company or Recipient’s Affiliates from sources a Subsidiary Guarantor, then the Company shall cause such transferee Subsidiary to assume, and such transferee Subsidiary shall assume, all of the obligations of the Company or such Subsidiary Guarantor hereunder and under the other than Loan Documents; and PROVIDED, further, that the Discloser Company or Discloser’s Affiliates under circumstances not involving such Subsidiary Guarantor shall remain fully obligated as an Obligor hereunder; (v) the Company or any breach Subsidiary may convey, sell, lease, transfer or otherwise dispose of any confidentiality obligation between such source non-material Property (of the Company and its Subsidiaries, taken as a whole) including equity interests in any Person and the Discloser licensing of patents and product rights; and (vi) the Company or Discloser’s affiliates; (d) is independently developed by the Recipient any Subsidiary may lease or the Recipient’s Affiliates, without sublease any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)real Property.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Shareholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shareholder’s Shares, including, without limitation, representations and warranties that (i) hereof shall not applythe Shareholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Shareholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the Recipient acquiror and are enforceable against the Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency by which such Shareholder is subject or bound; (b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company; (c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person, and is pro rata in proportion to the amount of consideration paid to such Shareholder in connection with such Proposed Sale (in accordance with the provisions of the Certificate of Incorporation); (d) liability shall be limited to such Shareholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Shareholder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder; (e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of Preferred Stock elect otherwise by written notice given to the Company at least thirty (30) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipient’s relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event (or any assuming for this purpose that the Proposed Sale is a Liquidation Event) in accordance with the Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; and (cf) becomes known subject to Subsection 3.3(e) above, requiring the same form of consideration to be available to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach holders of any confidentiality obligation between such source and single class or series of capital stock, if any holders of a series or class of capital stock of the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference Company are given an option as to the Discloser’s Confidential Information; or (e) is required form and amount of consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information Proposed Sale, all holders of such series or class of capital stock will be given the same option; provided, however, that must nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)shareholders.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known Notwithstanding the restrictions set forth in Section 5.01 of this Tenth Supplemental Indenture, the Company and its Subsidiaries will be permitted to incur, issue, assume or guarantee Indebtedness secured by a Lien on any Principal Property or on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property which would otherwise be subject to the Recipient or restrictions set forth in Section 5.01 of this Tenth Supplemental Indenture without equally and ratably securing the Recipient’s Affiliates prior to Notes and the receipt Securities Guarantees, if as of the Confidential Information from time of such incurrence, issuance, assumption or guarantee, after giving effect thereto, the Discloser aggregate principal amount of all Indebtedness secured by Liens on any Principal Property or Discloser’s Affiliates; on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property (not including Indebtedness secured by Liens permitted under clauses (a) through (h) of Section 5.01), together (without duplication) with the aggregate amount of Attributable Debt outstanding in respect of sale and leaseback transactions entered into pursuant Section 5.03(b), does not at the time exceed 15% of Consolidated Total Assets of the Company calculated as of the time of such incurrence, issuance, assumption or guarantee of secured Indebtedness. (b) wasNotwithstanding the restrictions set forth in Section 5.02 of this Tenth Supplemental Indenture, or becomes through no breach the Company and its Subsidiaries may enter into any sale and leaseback transaction which would otherwise be prohibited by Section 5.02, if as of the Recipient’s time of entering into such sale and leaseback transaction, after giving effect thereto, the aggregate amount of all Attributable Debt with respect to sale and leaseback transactions (or any of its Affiliates’not including Attributable Debt with respect to sale and leaseback transactions permitted under clauses (a) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or through (e) is required to be disclosed by law or applicable legal processof Section 5.02), provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall together (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(swithout duplication) with the Discloser in protecting such confidential aggregate principal amount of all Indebtedness secured by Liens on any Principal Property or proprietary nature on any Capital Stock or Indebtedness of any Subsidiary of the Confidential Information that must be so disclosed (with Company owning any Principal Property outstanding pursuant to Section 5.03(a), does not at the time exceed 15% of Consolidated Total Assets of the Company calculated as of the time of entry into such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)sale and leaseback transaction.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) no Stockholder, its Affiliates or its successors shall be compelled to approve or make any representation or warranty (other than provisions relating to its equity ownership in the Company) with respect to, approve or enter into any amendment of, or waive any of its rights or claims under, any provision of any commercial agreement with the Company, including without limitation any provision intended to address the regulatory status of American Express Travel Related Services Company, Inc. (“AXP”); (d) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and, except with respect to liability for breaches of representations made by the stockholders, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (e) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (f) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series (and in the case of holders of shares of Series D-1 Preferred Stock, no less than every other holder of shares of Series D Preferred Stock that participates in the Proposed Sale with respect to such shares of Series D Preferred Stock, and in the case of holders of shares of Series E-1 Preferred Stock, no less than every other holder of shares of Series E Preferred Stock that participates in the Proposed Sale with respect to such shares of Series E Preferred Stock), (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the receipt Proposed Sale; (g) such Stockholder is not required to enter into any agreement imposing non-competition, non-solicitation or similar covenants on such Stockholder (except any Stockholder who is an employee of the Confidential Information from Company at the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach time of the RecipientProposed Sale); (h) such Proposed Sale results in the sale of 100% of the Company’s (or any of its Affiliates’) obligations hereunder, known to the publicoutstanding capital stock; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall and (i) give solely with respect to any Sale of the Discloser Company consummated prior to January 1, 2020, the holders of Series F Preferred Stock shall not have any obligation to comply with any of the provisions of Section 3.2(a) if such Sale of the Company would result in proceeds payable to the holders of Series F Preferred Stock in cash and freely tradeable securities in an aggregate amount per share of Series F Preferred Stock that is less than 1.5 times the Series F Original Issue Price (as much prior notice thereof as is reasonably practicable so that defined in the Discloser may seek such protective orders Restated Charter and subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) similar recapitalization with respect to the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costsSeries F Preferred Stock).

Exceptions. The obligations imposed Notwithstanding the foregoing, a Member will not be required to comply with Section ‎20.5(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (i) any representations and warranties to be made by section 8(bsuch Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) hereof shall not applythe Member holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Member purports to hold, free and clear of all liens and Encumbrances, (B) the obligations of the Member in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (ii) the Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of any representation or warranty made by the Company in connection with the Proposed Sale; (iii) the liability for indemnification, if any, of such Confidential InformationMember in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person; (iv) the liability for indemnification shall be limited to such Member’s applicable share (determined based on the respective proceeds payable to each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which need not be limited as to such Member; (v) upon the consummation of the Proposed Sale: (aA) was known except as provided in Section ‎20.5(b)(v), each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class as is received by other holders in respect of their Shares of such same class of Shares; and (B) unless the Major Members elect to receive a lesser amount by written notice given to the Recipient or the Recipient’s Affiliates Company at least [***] prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach effective date of any confidentiality obligation between such source Proposed Sale, the aggregate consideration receivable by all holders of Shares shall be allocated among the holders of Ordinary Shares pro rata to their holding of Ordinary Shares; provided, however, that, notwithstanding the foregoing provisions of this Subsection ‎20.5(b)(v), if the consideration to be paid in exchange for the Shares, as applicable, pursuant to this Subsection ‎20.5(b)(v) includes any securities and due receipt thereof by any Member or would require under applicable law (x) the Discloser registration or Discloser’s affiliates; (d) is independently developed by the Recipient qualification of such securities or the Recipient’s Affiliates, without of any use of person as a broker or reference dealer or agent with respect to the Discloser’s Confidential Informationsuch securities; or (ey) provision to any Member of any information other than such information as a prudent issuer would generally furnish in an offering ​ made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Member in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Member, an amount in cash equal to the fair value (as determined in good faith by the Board of Directors) of the securities which such Member would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; (vi) except as provided in Section ‎20.5(b)(v), subject to clause ‎(v) above, requiring the same form of consideration to be available to the holders of any single class of Shares, if any holders of any Shares are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such Shares will be given the same option; and (vii) no Member who is not a current or former employee of the Company shall be required to be disclosed by law agree to any restrictive covenant in connection with any Proposed Sale (including any covenant not to compete with or applicable legal processcovenant not to solicit or hire customers, provided that employees or suppliers of any party to the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costsProposed Sale).

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Restated Certificate in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Confidential Information from Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the Discloser or Discloser’s Affiliates; fair value (bas determined in good faith by the Company) was, or becomes through no breach of the Recipient’s securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (or any of its Affiliates’f) obligations hereunder, known subject to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed by section 8(b) hereof shall not applyNotwithstanding Section 6.04(a), or shall cease to apply, to at any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates time prior to the receipt approval and adoption of this Agreement by the Confidential Information from Company’s stockholders, if the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (Company or any of its Affiliates’Representatives has received a bona fide written Company Acquisition Proposal that the Board of Directors of the Company reasonably believes constitutes or would reasonably be expected to lead to a Superior Proposal, the Company, directly or indirectly through its Representatives, may, as long as the Company, its Subsidiaries and their Representatives shall not have breached or taken any action inconsistent with Section 6.04(a), (i) obligations hereunderengage in negotiations or discussions with such Third Party and its Representatives, known (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the public; (c) becomes known Company or any of its Subsidiaries or afford access to the Recipient business, properties, assets, books or Recipient’s Affiliates records of the Company or any of its Subsidiaries to such Third Party, in each case pursuant to a customary confidentiality agreement (which confidentiality agreement shall not prohibit the Company or its Subsidiaries from sources other providing any information to Parent required by this Section 6.04) with such Third Party with terms no less favorable to the Company than those contained in the Discloser Confidentiality Agreement; provided, however, that all such information (to the extent that such information has not been previously provided or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (dmade available to Parent) is independently developed by provided or made available to Parent prior to or substantially concurrently with the Recipient time it is provided or the Recipient’s Affiliatesmade available to such Third Party, without any use of or reference subject to the Discloser’s Confidential Informationright of the Company to withhold information where such disclosure would contravene any Applicable Law, and (iii) take any action that any court of competent jurisdiction orders the Company to take; provided, however, that prior to taking any action described in Section 6.04(b)(i) or Section 6.04(b)(ii) above, (A) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action could reasonably be determined to be inconsistent with its fiduciary duties to the holders of Company Stock under Applicable Law and (B) the Board of Directors of the Company shall determine in good faith, based on the information then available and after consultation with its independent financial advisor and outside legal counsel, that such Company Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Nothing contained herein shall prevent the Board of Directors of the Company from (x) complying with Rule 14e-2(a) or Rule 14d-9 under the 1934 Act with regard to a Company Acquisition Proposal so long as any action taken or statement made to so comply is consistent with this Section 6.04; or (ey) is required to be disclosed by law issuing a “stop, look and listen” disclosure or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature similar communication of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring type contemplated by Rule 14d-9(f) under the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)1934 Act.

Exceptions. The obligations imposed by section 8(bNotwithstanding the foregoing, a Holder will not be required to comply with Section 1.1 in connection with any proposed Sale of Networks3 (the “Proposed Sale”) hereof unless: (a) such Holder shall not applybe liable for the inaccuracy of any representation or warranty made by any other Person, other than Networks3, in connection with the Proposed Sale (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of Networks3 as well as breach by any stockholder of any of representations, warranties and covenants provided by all stockholders or all stockholders that hold greater than one percent of the then Fully Diluted Shares); (b) the liability for indemnification, if any, of such Holder in the Proposed Sale and for the inaccuracy of any representations and warranties made by Networks3 in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of Networks3 as well as breach by any stockholder of any of representations, warranties and covenants subject to Section 1.2(f) provided by all stockholders or all stockholders that hold greater than one percent of the then Fully Diluted Shares), and is pro rata in proportion to the amount of consideration paid to such Holder in connection with such Proposed Sale (consistent with the provisions of Networks3’s certificate of incorporation in effect immediately before the Proposed Sale); (c) liability shall cease be limited to applysuch Holder’s applicable share (determined based on the respective proceeds payable to each Holder in connection with such Proposed Sale) of a negotiated aggregate indemnification amount, that applies equally to all Holders or all Holders that hold greater than one percent of the then Fully Diluted Shares; (d) upon the consummation of the Proposed Sale, (1) each holder of each class or series of Networks3’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (2) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (3) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (4) the aggregate consideration receivable by all holders of the Series B Preferred Stock and Common Stock in respect of their shares of Series B Preferred Stock and Common Stock shall be allocated among the holders of Series B Preferred Stock and Common Stock in the manner provided in Networks3’s organizational documents as in effect immediately prior to such Proposed Sale with respect to a change of control (assuming for this purpose that the Proposed Sale is a change of control); (e) subject to Section 1.2(d) requiring the same form of consideration to be available to the holders of any Confidential Information single class or series of capital stock, if or whenany holders of any capital stock of Networks3 are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (f) any representations and warranties to be made by such Holder in the Proposed Sale in connection with its equity ownership in Networks3 are limited to (1) representations and warranties related to authority, ownership and the ability to convey title to such Shares, including representations and warranties that the Holder holds all right, title and interest in and to the extent thatShares such Holder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (a2) was known the obligations of the Holder in connection with the transaction have been duly authorized, if applicable, (3) the documents to be entered into by the Holder have been duly executed by the Holder and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Holder in accordance with their respective terms, (4) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from the Discloser Holder’s obligations thereunder, will cause a breach or Discloser’s Affiliates; (b) was, or becomes through no breach violation of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach terms of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliatesagreement, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processjudgment, provided that the Recipient order or the Recipientdecree of any court or governmental agency, (5) a general release and waiver of claims relating to such Holder’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, equity ownership in its sole discretion and at its sole expense, may elect, Networks3 and (ii6) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)covenants regarding confidentiality, publicity and similar matters.

Exceptions. The obligations imposed by section 8(b) hereof Any other provision herein to the contrary notwithstanding, the Company shall not apply, or shall cease to apply, to any Confidential Information if or when, and be obligated pursuant to the extent that, such Confidential Information: terms of this Agreement: (a) was known to indemnify or advance expenses to the Recipient Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the Recipient’s Affiliates prior Indemnitee and not by way of defense, except with respect to proceedings specifically authorized by the receipt Board or brought to establish or enforce a right to indemnification and/or advancement of expenses arising under this Agreement, the charter documents of the Confidential Information from Company or any subsidiary or any statute or law or otherwise, but such indemnification or advancement of expenses may be provided by the Discloser or Discloser’s AffiliatesCompany in specific cases if the Board finds it to be appropriate; or (b) wasto indemnify the Indemnitee hereunder for any amounts paid in settlement of a proceeding unless the Company consents in advance in writing to such settlement, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the publicwhich consent shall not be unreasonably withheld; or (c) becomes known to indemnify the Indemnitee on account of any suit in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the Recipient provisions of Section l6(b) of the Securities Exchange Act of 1934 and amendments thereto or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach similar provisions of any confidentiality obligation between such source and the Discloser federal, state or Discloser’s affiliateslocal statutory law; or (d) to indemnify the Indemnitee if a final decision by a court having jurisdiction in the matter shall determine that such indemnification is independently developed by not lawful. In this respect, the Recipient or Company and the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided Indemnitee have been advised that the Recipient or Securities and Exchange Commission takes the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give position that indemnification for liabilities arising under the Discloser as much prior notice thereof as federal securities laws is reasonably practicable so against public policy and is, therefore, unenforceable and that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must claims for indemnification should be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates submitted to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)appropriate courts for adjudication.

Exceptions. The obligations imposed Sections 10(c), (d), (e) and (f) do not apply to (i) the issuance of any Capital Stock or Capital Stock Equivalents issued pursuant to Employee Stock Program Grants, (ii) the issuance by section 8(ba Purchaser Entity following a Qualified Public Offering of any shares of any publicly traded class of Capital Stock pursuant to an employee stock purchase plan or pursuant to a dividend reinvestment plan, (iii) hereof shall not applyissuances made by any Purchaser Entity solely to other Purchaser Entities, (iv) the issuance of Capital Stock pursuant to any Warrant or Three-Year Warrant, (v) any arm’s-length transaction for a bona fide business purpose with a third party which has been approved by a majority of the disinterested directors of the issuing Purchaser Entity or by the disinterested directors of the Company if the issuing Purchaser Entity has no disinterested directors, (vi) any transaction for a bona fide business purpose with an Affiliate that is determined to have been fair by a majority of the disinterested directors of the issuing Purchaser Entity or by the disinterested directors of the Company if the issuing Purchaser Entity has no disinterested directors, (vii) any of the transactions described by Section 9 (viii) with respect to Sections 10(c) and 10(d), the issuance of Capital Stock upon the conversion, exercise or exchange of any Capital Stock Equivalents for which an adjustment has been made pursuant to Section 10(e) or 10(f) or for which no adjustment was required pursuant to Section 10(e),10(f), or 10(i) or (ix) the issuance of securities to Persons providing debt financing or their successors or assigns; provided, however, that this clause (ix) shall cease apply to apply, securities issued to any Confidential Information a Person that is Affiliated with an Affiliate of the Company only if or when, and to the extent thatsuch Person (A) did not negotiate the terms of such debt financing, such Confidential Information: (aB) was known receives no more than 20% of the securities issued to the Recipient or Persons providing such debt financing and (C) receives no more than its pro rata share of the Recipient’s Affiliates prior securities issued to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between Persons providing such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)debt financing.

Exceptions. The obligations imposed by section 8(b) hereof Any other provision herein to the contrary notwithstanding, the Company shall not applybe obligated pursuant to the terms of this Agreement to indemnify Indemnitee: (a) against any Losses or Expenses, or shall cease to applyadvance Expenses to Indemnitee, with respect to Claims initiated or brought voluntarily by Indemnitee, and not by way of defense, except (i) Claims to establish or enforce a right to indemnification, contribution or advancement with respect to an Indemnification Event, whether under this Agreement, any Confidential Information other agreement or insurance policy, the Company’s Organizational Documents of any Covered Entity, the laws of the State of Delaware or otherwise, or (ii) if the Board has approved specifically the initiation or whenbringing of such Claim; (b) against any Losses or Expenses, or to advance Expenses to Indemnitee, with respect to Claims arising (i) with respect to an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or (ii) pursuant to Section 304 or 306 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, or any rule or regulation promulgated pursuant thereto; (c) if, and to the extent thatextent, that such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliatesindemnification is not lawful; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; 4894-3716-4339v.1 (d) for any amounts paid in settlement of any Claim effected without the Company’s prior written consent. The Company shall not settle any Claim in any manner which would impose any fine or obligation on Indemnitee that is independently developed not indemnified by the Recipient or the Recipient’s AffiliatesCompany hereunder, without Indemnitee’s prior written consent. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any use judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processsuch action, provided that the Recipient Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement; (e) if, and to the extent, that the amounts paid in settlement of any Claim were pursuant to a settlement approved by a court of competent jurisdiction and indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement; (f) against any Losses or Expenses, or to advance Expenses to Indemnitee, with respect to Claims or Proceedings involving the enforcement of non-compete, non-disclosure, non-solicitation and/or clawback, return, forfeiture and/or offset of compensation agreements, or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser non-compete, non-disclosure, non-solicitation and/or clawback, return, forfeiture and/or offset provisions of employment, consulting or similar agreements to which Indemnitee may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) be a party with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Covered Entity.

Exceptions. The obligations imposed by section 8(bThis Contract and the Deed shall be subject to and in accordance with the following exceptions, reservations and conditions: (A) standard exceptions of the Title Company in its title policies issued in the state in which the Premises are located. (B) special taxes or assessments for improvements not yet completed, if any. (C) installments not due at the date hereof shall not applyof any special tax or assessment for improvements completed, or shall cease to applyif any. (D) general taxes, to any Confidential Information if or whenany, and to for the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates tax year prior to the receipt year in which the Deed is delivered and subsequent years. If the Premises are locally assessed for the year in which the Deed is delivered, the taxes for such year shall be prorated as of the Confidential Information from date on which the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach Deed is delivered on the basis of the Recipientmost recent tax bill, unless the payment of taxes has been assumed by a tenant. If the Premises is assessed as railroad operating property by the State in which the Premises is located, then the Donor agrees to pay, when due, taxes for the year in which the deed is delivered and prior years, assessed in Donor’s name. (E) building, building lines and use or occupancy restrictions, zoning and building laws or ordinances, and other laws, ordinances, requirements, limitations, restrictions, regulations and codes which are or may be imposed upon the Premises by any governmental authority having jurisdiction thereof. (F) public roads and highways, if any. (G) judgment liens; however, any judgment against Donor which may appear of its Affiliates’record as a lien against the Premises shall be settled and satisfied by Donor if and when it is judicially determined to be finally valid, and ▇▇▇▇▇ shall indemnify the Donee for all loss arising out of Donor’s failure to have such judgment lien so settled and satisfied. This provision shall survive the Closing of this transaction and the delivery of the Deed. (H) obligations hereundercovenants, known conditions, restrictions, licenses and easements of record. (I) Existing leases: None identified (J) The sale of the Premises is subject to all of the public; rights of the owner of the mineral estate in said Premises, if any. If, however, it is found that ▇▇▇▇▇ has mineral right in the Premises, such rights will not be retained by Donor but will pass to Donee by the Quitclaim Deed from Donor as set forth in Section 4 herein. (cK) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach rights of any confidentiality obligation between such source government agencies, public or quasi-public utilities for the use, maintenance, repair, replacement and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliatesreconstruction of existing driveways, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processroads and highways, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itconduits, in its sole discretion and at its sole expensesewers, may electdrains, water mains, fiber optics cables and/or communications systems, gas lines, electric power lines, wires, and other utilities and easements. (iiL) reasonably cooperate(s) with the Discloser in protecting such confidential acts by, through or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)under Donee.

Exceptions. The obligations imposed (a) Subject to Section 2.1(a)(ii) of this Article V, the Trustees, in their sole discretion, may exempt a Person from the Aggregate Share Ownership Limit and the Common Share Ownership Limit, as the case may be, and may (but are not required to) establish or increase an Excepted Holder Limit for such Person if: (i) the Trustees obtain such representations and undertakings from such Person as are reasonably necessary to ascertain that no Person's Beneficial Ownership or Constructive Ownership of such Equity Shares will violate Section 2.1(a)(ii) of this Article V; (ii) such Person does not and represents that it will not own, actually or Constructively, an interest in a tenant of the Trust or an interest in a tenant of any Initial Portfolio Company (or a tenant of any entity owned or controlled by section 8(bthe Trust or such Initial Portfolio Company) hereof that would cause the Trust or such Initial Portfolio Company, as the case may be, to own, actually or Constructively, more than a 9.8% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant, and the Trustees obtain such representations and undertakings from such Person as are reasonably necessary to ascertain this fact (for this purpose, a tenant from whom a REIT (or an entity owned or controlled by such REIT) derives (and is expected to continue to derive) a sufficiently small amount of revenue such that, in the good faith opinion of the Trustees after consultation with such REIT, rent from such tenant to such REIT would not adversely affect such REIT's ability to qualify as a REIT, shall not applybe treated as a tenant of such REIT); (iii) such Person agrees that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in Sections 2.1 through 2.6 of this Article V) will result in such Equity Shares being automatically transferred to a Charitable Trust in accordance with Sections 2.1(b) and 3 of this Article V; and, (iv) the Trustees obtain a voting Trust or other undertakings from the Person to be exempted which satisfy the Trustees that such Person will not attempt to exert undue influence or control over the Trust. (b) Prior to granting any exception pursuant to Section 2.7(a) of this Article V, the Trustees may require a ruling from the Internal Revenue Service, or shall cease an opinion of counsel, in either case in form and substance satisfactory to applythe Trustees in their sole discretion, as they may deem necessary or advisable in order to determine or ensure the Trust's or an Initial Portfolio Company's, as applicable, status as a REIT. Notwithstanding the receipt of any Confidential Information if ruling or whenopinion, the Trustees may impose such conditions or restrictions as it deems appropriate in connection with granting such exception. (c) In determining whether to grant any exemption pursuant to Section 2.7(a) of this Article V, the Trustees may consider, among other factors, (i) the general reputation and moral character of the Person requesting an exemption, (ii) whether ownership of shares would be direct or through ownership attribution, (iii) whether the Person's ownership of shares would adversely affect the Trust's or an Initial Portfolio Company's ability to acquire additional properties or additional investments in other issuers, (iv) whether granting an exemption for the Person requesting an exemption would adversely affect any of the Trust's existing contractual arrangements, including any contractual obligation to help maintain an Initial Portfolio Company's status as a REIT, and (v) whether the Person to whom the exemption would apply is attempting to change control of the Trust or affect its policies in a way which the Trustees consider adverse to the best interest of the Trust or its Shareholders. (d) Subject to Section 2.1(a)(ii) of this Article V, an underwriter which participates in a public offering or a private placement of Equity Shares (or securities convertible into or exchangeable for Equity Shares) may Beneficially Own or Constructively Own Equity Shares (or securities convertible into or exchangeable for Equity Shares) in excess of the Aggregate Share Ownership Limit, the Common Share Ownership Limit or both such limits, but only to the extent that, necessary to facilitate such Confidential Information: (a) was known to the Recipient public offering or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or private placement. (e) is required to be disclosed by law or applicable legal process, provided that The Trustees may only reduce the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Excepted Holder Limit for an Excepted Holder: (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s1) with the Discloser in protecting written consent of such confidential Excepted Holder at any time, or proprietary nature (2) pursuant to the terms and conditions of the Confidential Information that must be so disclosed (agreements and undertakings entered into with such duty Excepted Holder in connection with the establishment of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Excepted Holder Limit for that Excepted Holder.

Exceptions. The obligations imposed by section 8(bNotwithstanding anything to the contrary in the foregoing provisions of this Section 12, if (and only if) hereof Tenant (or a Permitted Transferee) leases more than all of the rentable square footage of an entire floor of Building I and/or Building 2 (as applicable), subsections 12(a) and 12(d), above, shall not applybe applicable with respect to the Building I Premises and/or Building 2 Premises (as applicable) (otherwise the terms of this Section 12(e) shall not be applicable with respect to the Building I Premises and/or the Building 2 Premises (as applicable)). In such instance, the following subsections 12(e)(1) and 12(e)(2) shall apply (in lieu of subsections 12(a) and 12(d)) to the Building I Premises and/or the Building 2 Premises (as applicable): (1) This Lease shall be subordinate to any deed of trust, mortgage, or shall cease other security instrument (each, a "Mortgage"), or any ground lease;master lease, or primary lease (each, a "Primary Lease"), that now or hereafter covers all or any part of the Building 1 Premises and/or Building 2 Premises (as applicable) (the mortgagee under any such Mortgage, benefIciary under any such deed of trust, or the lessor under any such Primary Lease is referred to applyherein as a "Landlord's Mortgagee"), to any Confidential Information if or when, and subject to the extent that, such Confidential Information: execution of an SNDA (adefIned below) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s by any then-current Landlord's Mortgagee and Tenant (or any Permitted Transferee, as applicable). Landlord has obtained a subordination, non-disturbance and attornment agreement ("SNDA") from the current Landlord's Mortgagee, and Tenant and Landlord's Mortgagee (existing as of the date of this Lease) executed and delivered such SNDA concurrently with the execution and delivery of this Lease). Any Landlord's Mortgagee may elect, at any time, unilaterally, to make this Lease superior to its Affiliates’Mortgage, Primary Lease, or other interest in the Premises by so notifying Tenant in writing. If at any time Landlord refinances the Building 1 Premises and/or the Building 2 Premises, as applicable, Tenant shall from time to time, within ten (10) obligations hereunderbusiness days after written request therefor execute and return to Landlord (or such .other party designated by Landlord) an SNDA on such future Landlord's Mortgagee's form, known in recordable form if required, subject to such reasonable modifications as a Landlord's Mortgagee and Tenant may reasonably request and subsequently agree to evidence the public; subordination to, and non-disturbance of this Lease (cthe "Mortgagee Form"). If Landlord's Mortgagee and Tenant cannot agree on the Mortgagee Form within such ten (10) becomes known business day period, the SNDA shall be substantially in the form of Exhibit M attached hereto (the "Prescribed Form"), subject to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give changes which are necessary to conform such SNDA to the Discloser as much prior notice thereof as is reasonably practicable so that actual facts and state of affairs of the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electLease, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if all of the Confidential Information Landlord's initial construction obligations under Exhibit D and I of this Lease are complete, then the removal of all applicable terms within the Prescribed Form attached as Exhibit M relating to the construction of improvements (including without limitation the LlC (as defined therein)), and ensuring that, regardless of actions or defaults by Landlord.or any other party and . exercise of remedies by such current or future Mortgage holder, provided that must no Event of Default exist under this Lease, Tenant shall continue to enjoy all rights and privileges conveyed in this Lease and shall not have its tenancy disturbed. Tenant shall, within five (5) business days after Landlord's request therefor, execute and deliver such Prescribed Form, and if Tenant fails timely to do so, the same shall constitute an immediate Event of Default and this Lease shall automatically be so disclosed deemed to be subordinate to such Mortgage. (with 2) If Landlord's Mortgagee shall succeed to the interest of Landlord under this Lease, the Mortgagee Form shall contain such duty protections of cooperation Landlord's Mortgagee and Tenant as are customary for a Lease of this size, scope and importance. Landlord's Mortgagee shall have no liability or responsibility under or pursuant to the terms of this Lease or otherwise after it ceases to own an interest in the Complex. Nothing in this Lease shall be construed to require Landlord's Mortgagee to see to the application of the proceeds of any loan, and Tenant's agreements, rights and benefits set forth herein shall not requiring be impaired on account of any modification of the Recipient or Recipient’s Affiliates to initiate or participate in documents evidencing and securing any litigation or incur more than de minimis out-of-pocket costs)loan.

Exceptions. The obligations imposed Notwithstanding the foregoing, an Investor will not be required to comply with the provisions of this Section 2(c) unless: (A) any representations and warranties to be made by section 8(bsuch Investor in connection with any transaction proposed to be subject to the Drag-Along Right are limited to representations and warranties related to organization, authority, ownership and the ability to convey title to such Shares (including any Share Equivalents), due execution and enforceability of transaction documents, non-contravention and no conflicts, governmental approvals, no brokers and no litigation relating to the transaction; (B) hereof the Investor shall not applybe liable for the inaccuracy of any representation or warranty made by any other Person in connection with any transaction proposed to be subject to the Drag-Along Right, or shall cease to apply, to any Confidential Information if or when, and other than the Company (except to the extent thatthat funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company, as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders); (C) the liability for indemnification, damages or other remedies if any, of such Confidential Information: Investor in any such transaction and for the inaccuracy of any representations and warranties made by the Company or its stockholders in connection with such transaction, is several and not joint with any other Person (a) was known except to the Recipient extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company, as well as breach by any stockholder of any identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Investor in connection with such transaction (subject to and taking into account any liquidation preference provisions of the Certificate of Incorporation), except that the liability for claims related to breaches of such Investor’s representations, warranties and covenants or the Recipient’s Affiliates prior fraud by such Investor shall only be borne by such Investor (except to the receipt extent of any such escrow); (D) subject to Section 2(c)(iv), the Investors will receive the same form of consideration in such Transfer and if any holders of any capital stock of the Confidential Information from Company are given an option as to the Discloser or Discloser’s Affiliates; (b) wasform and amount of consideration to be received as a result of any transaction proposed to be subject to the Drag-Along Right, or becomes through no breach all holders of the Recipientsame class or series of capital stock will be given the same option; provided, however, that nothing in this Section 2(c)(vii)(D) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s (failure to satisfy any condition, requirement or any of its Affiliates’) obligations hereunder, known limitation that is generally applicable to the publicCompany’s stockholders; (c) becomes known provided, further that an Investor that is an employee of the Company or its Subsidiaries may be given an option to receive securities in lieu of cash consideration in a “rollover transaction” without offering the same to other Investors, as long as such securities are of an equivalent value at the closing of the Drag-Along Sale as the consideration paid to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliatesInvestors; and (dE) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference notwithstanding anything to the Discloser’s Confidential Information; contrary in the foregoing, no Tiptree Investor or (e) is Warburg Investor shall be required to make any non-compete with respect to any transaction proposed to be disclosed by law or applicable legal process, provided that subject to the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis outDrag-of-pocket costs)Along Right.

Exceptions. The obligations imposed Notwithstanding the forgoing, a Member will not be required to comply with Section 10.06(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (i) any representations and warranties to be made by section 8(bsuch Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Units, including but not limited to representations and warranties that (A) hereof shall not applythe Member holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the Units such Member purports to hold, free and clear of all liens and encumbrances, (B) the obligations of the Member in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Member have been duly executed by the Member and delivered to the acquirer and are enforceable against the Member in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (ii) the Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of any representation or warranty made by the Company in connection with the Proposed Sale (except to the extent thatthat funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Member of any of identical representations, warranties and covenants provided by all Members); (iii) the liability for indemnification, if any, of such Confidential InformationMember in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company), and is pro rata in proportion to the amount of consideration paid to such Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement related to the allocation of the escrow); (iv) the liability for indemnification shall be limited to such Member’s pro rata share (determined based on the respective proceeds payable to each Member in connection with such Proposed Sale in accordance with the provisions of this Agreement) of a negotiated aggregate indemnification amount that applies equally to all Members but that in no event exceeds the amount of consideration actually paid to such Member in connection with such Proposed Sale, except with respect to claims of fraud by such Member, the liability for which need not be limited as to such Member; (v) upon the consummation of the Proposed Sale: (aA) was known except as provided in Section 10.06(b)(vi), each holder of each class or series of Units will receive the same form of consideration for their Units of such class or series as is received by other holders in respect of their Units of such same class or series of Units; and (B) unless the Requisite Preferred Holders, the Series B Vote and the Series C Vote elect to receive a lesser amount by written notice given to the Recipient or the Recipient’s Affiliates Company at least five (5) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of Units shall be allocated among the holders of Preferred Units, Common Units and Non-Voting Incentive Units in accordance with Section 8.01 of this Agreement as if such consideration were distributed to the Members pursuant thereto; except as provided in Section 10.06(b)(vi), subject to clause (v) above, requiring the same form of consideration to be available to the holders of any single class or series of Units, if any holders of any Units are given an option as to the form and amount of consideration to be received as a result of the Confidential Information from Proposed Sale, all holders of such Units will be given the Discloser or Discloser’s Affiliatessame option; and (bvi) was, or becomes through no breach Member who is not an employee of the Recipient’s (Company shall be required to agree to any general release of claims or covenant not to compete with or covenant not to solicit or hire customers, employees or suppliers of any of its Affiliates’) obligations hereunder, known party to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Proposed Sale.

Exceptions. The obligations imposed by section 8(b) hereof shall not applyNotwithstanding Section 11.1, or shall cease to applya Stockholder, to its Affiliates and their Agents may disclose any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to any Governmental Entity in connection with applications for approval of the transactions contemplated hereby and the other Transaction Documents (or, in the case of any regulated Affiliate of a Stockholder, in connection with audits by the applicable Governmental Entities), (b) to financial institutions in connection with financings of the transactions contemplated hereby, (c) in the case of any Stockholder, (i) to a bona fide potential Transferee if such Stockholder desires to undertake any Transfer of its capital stock permitted by these Bylaws, (ii) to its stockholders, limited partners, members, trust beneficiaries or other equityholders, as the case may be, all materials made available to such Stockholder pursuant to the Recipient terms of these Bylaws and (iii) to its indirect stockholders, limited partners, members, trust beneficiaries or other equityholders, as the Recipient’s Affiliates case may be, so long as the Confidential Information disclosed to such Persons is limited to the materials delivered to such party pursuant to Section 4.4(a), provided that (A) in the case of subclauses (i), (ii) and (iii) of this clause (c), prior to the receipt disclosure of any Confidential Information, such Person shall execute an agreement containing substantially the terms set forth in Section 11.1 and this Section 11.2, and (B) in the case of clauses (ii) and (iii) above, the disclosure of Confidential Information relating to commercial transactions or commercial relationships of the Confidential Information from Company and its Subsidiaries shall be strictly limited to such Persons who have an actual need to know such information in connection with the Discloser administration of their equity interest in such Stockholder, (d) to any rating or Discloser’s Affiliates; (b) was, similar agency in connection with its analysis or becomes through no breach review of the Recipient’s (Company or any of its Affiliates’) obligations hereunderSubsidiaries, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processin the case of the GM Trust, provided that the Recipient or the Recipient’s Affiliate(s) making between such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in trust and its sole discretion trustee and at its sole expense, may electAgents, and (iif) reasonably cooperate(s) with the Discloser in protecting to any other Person if such confidential or proprietary nature of the Confidential Information that must be so disclosed party becomes compelled by Law (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs).including by deposition, interrogatory, request for documents, subpoena, civil investigative demand, mandatory provision

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into by the Stockholder in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement to which the Stockholder is a party, or any law or judgment, order or decree of any court or governmental agency that applies to the Stockholder; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s capital stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the Preferred Stock (voting together as a single class and on an as-converted basis) elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (f) subject to clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the preceding subparagraphs of this Paragraph 5 will be construed to require NAI to pay or reimburse: l Excluded Taxes; or l Losses incurred or suffered by section 8(bany Interested Party that are proximately caused by (and attributed by any applicable principles of comparative fault to) hereof shall not applythe Established Misconduct of that Interested Party; or l Losses that result from any Liens Removable by BNPPLC; or l Losses incurred or suffered by any of the Participants in connection with the negotiation or execution of the Participation Agreement (or supplements making them parties thereto) or in connection with any due diligence Participants may undertake before entering into the Participation Agreement; or l Local Impositions or other Losses contested, if and so long as they are contested, by NAI in accordance with any of the provisions of this Lease or shall cease other Operative Documents which expressly authorize such contests; or l transaction expenses or other Losses caused by or necessary to apply, accomplish any conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a Permitted Transfer only by reason of clause (3) of the definition of Permitted Transfer in the Common Definitions and Provisions Agreement ; or l any amount which may from time to time be payable by BNPPLC to any Confidential Information if Participant representing the excess of “Base Rent” as defined in the Participation Agreement over Base Rent as defined in and calculated pursuant to this Lease and the Common Definitions and Provisions Agreement; or when, and to l any decline in the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt value of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach Property solely by reason of the Recipient’s (or any decline in general market conditions and not because of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source this Lease or other Operative Documents by NAI. Further, without limiting BNPPLC’s rights (as provided in other provisions of this Lease and other Operative Documents) to include the following in the calculation of the Lease Balance, the Break Even Price and the Discloser Make Whole Amount (as applicable) or Discloser’s affiliates; (d) is independently developed by to collect Base Rent, a Supplemental Payment and other amounts, the Recipient calculation of which depends upon the Lease Balance, BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the Recipient’s Affiliates, without any use preceding subparagraphs of this Paragraph 5 will be construed to require NAI to pay or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed reimburse an Interested Party for costs paid by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) BNPPLC with the Discloser in protecting such confidential or proprietary nature proceeds of the Confidential Information that must be so disclosed (Initial Advance as part of the Transaction Expenses or with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Construction Advances.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 6.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Capital Stock, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatCapital Stock such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from Stockholder’s obligations thereunder, will cause a breach or violation of the Discloser terms of any agreement, law or Discloser’s Affiliates; judgment, order or decree of any court or governmental agency; (b) wasthe Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, or becomes through no other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Recipient’s (or Company as well as breach by any stockholder of any of its Affiliates’) obligations hereunderidentical representations, known to the public; warranties and covenants provided by all stockholders); (c) becomes known the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any confidentiality obligation between stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such source and the Discloser or Discloser’s affiliates; Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale each Stockholder will receive the same form of consideration for the Capital Stock as is independently developed received by other Stockholders in respect of their Capital Stock; provided, however, that, notwithstanding the Recipient foregoing, if the consideration to be paid in exchange for Capital Stock, pursuant to this Section 6 includes any securities and due receipt thereof by a Stockholder would require under applicable law (x) the registration or the Recipient’s Affiliates, without qualification of such securities or of any use of person as a broker or reference dealer or agent with respect to the Discloser’s Confidential Informationsuch securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act or the Securities Act (Ontario), the Company may cause to be paid to such Stockholder in lieu thereof, against surrender of the Capital Stock, as applicable, which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Capital Stock as applicable; and (f) subject to clause (e) above, if any Stockholder is required given an option as to the form and amount of consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information Proposed Sale, all Stockholders will be given the same option; provided, however, that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate nothing in any litigation or incur more than de minimis out-of-pocket costs).this Subsection

Exceptions. 13 Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless:‌ 13 Drafter should assess and make determination as to whether any or all of the listed conditions are appropriate for the relevant transaction. The obligations imposed non-bracketed conditions are the ones typically considered minimal to ensure that no one is treated unfairly as a result of invocation of the drag-along. (a) [any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);] (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and [subject to the provisions of the Restated Certificate related to the allocation of the escrow,]14 is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) [liability shall be limited to such Stockholder's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;] (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s Affiliates stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other‌ 14 Include the bracketed language if you use the Allocation of Escrow provision (Section 2.3.4) of the Model Charter. holders in respect of their shares of Common Stock, and (iv) unless the holders of at least [specify percentage] 15 of the [Series A Preferred Stock] elect to receive a lesser amount by written notice given to the Company at least [ ] days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (f) [subject to clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs).stockholders.‌

Exceptions. The obligations imposed by section 8(b) hereof Any other provision herein to the contrary notwithstanding, the General Partner and the Partnership shall not applybe obligated pursuant to the terms of this Agreement to indemnify Indemnitees: (a) against any Losses or Expenses, or shall cease advance Expenses to applyIndemnitees, with respect to Claims initiated or brought voluntarily by Indemnitees, and not by way of defense (including, without limitation, affirmative defenses and counterclaims), except (i) Claims to establish or enforce a right to indemnification, contribution or advancement with respect to an Indemnification Event, whether under this Agreement, any other agreement or insurance policy, the Organizational Documents of any Covered Entity, applicable law or otherwise, (ii) if the Board has approved specifically the initiation or bringing of such Claim. (iii) if such indemnification is expressly required to be made by law, or (iv) if such indemnification is provided by MarkWest Energy GP, L.L.C., in its sole discretion, pursuant to the powers vested in MarkWest Energy GP, L.L.C. under the LLC Act or the LP Act; (b) against any Losses or Expenses, or advance Expenses to Indemnitees, with respect to any Confidential Information proceeding instituted by Indemnitees to enforce or interpret this Agreement, if a court of competent jurisdiction determines that the material assertions made by Indemnitees in such proceeding were not made in good faith or whenwere frivolous; (c) for any amounts paid in settlement of a proceeding unless the General Partner consents to such settlement, which consent shall not be unreasonably withheld; (d) against any Losses or Expenses, or advance Expenses to Indemnitees, with respect to Claims arising (i) with respect to an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitees of securities of the General Partner or the Partnership within the meaning of Section 16(b) of the Exchange Act or (ii) pursuant to Sections 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, or any rule or regulation promulgated pursuant thereto; or (e) if, and to the extent thatextent, that a court of competent jurisdiction renders a final, unappealable decision that such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances indemnification is not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)lawful.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Member will not be required to comply with Subsection 10 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to customary representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s shares, including, but not limited to, customary representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatshares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Member in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient or acquirer and are enforceable against the Recipient’s Affiliates prior Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the receipt transaction, nor the performance of the Confidential Information from Stockholder obligations thereunder, will cause a breach or violation of the Discloser terms of any agreement, law or Discloser’s Affiliates; judgment, order or decree of any court or governmental agency applicable to such Stockholder; (b) wasthe Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale or the noncompliance by any other Person with any covenant or agreement in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow or becomes through no holdback established to cover breach of representations, warranties and covenants of the Recipient’s (or Company as well as breach by any member of any of its Affiliates’) obligations hereunderidentical representations, known to the public; warranties and covenants provided by all Stockholders) (c) becomes known the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the Recipient extent that funds may be paid out of an escrow or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any holdback established to cover breach of representations, warranties and covenants of the Company as well as breach by any confidentiality obligation between such source Stockholder of any of identical representations, warranties and the Discloser or Discloser’s affiliates; (d) covenants provided by all members), is independently developed by the Recipient or the Recipient’s Affiliatespro rata in proportion to, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itand does not exceed, in its sole discretion and at its sole expensethe aggregate for all indemnification claims, may elect, and (ii) reasonably cooperate(s) with the Discloser amount of consideration paid to such Stockholder in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (connection with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs).Proposed Sale

Exceptions. The obligations imposed by section 8(bNotwithstanding the restrictions set forth in Sections 2(a) hereof shall not applyand 2(b), or shall cease to apply, to any Confidential Information if or when, and to each of the extent that, such Confidential Information: Locked-up Shareholders may (a) was known (subject to the Recipient or MTN Preferential Arrangements and the Recipient’s Affiliates prior Management Preferential Arrangements) participate in the Offering and the Over-Allotment Option and may transfer its Subject Shares to the receipt of underwriters pursuant to the Confidential Information from the Discloser or Discloser’s AffiliatesUnderwriting Agreement; and (b) was, or becomes through no breach of subject to any other lock-up restrictions agreed to by that Locked-up Shareholder with the Recipient’s (Underwriters in connection with the Offering or any other Registered Offering, at any time after the Offering transfer its Subject Shares: (i) to any beneficiary of its Affiliates’) obligations hereundersuch Locked-up Shareholder pursuant to a will, known other testamentary document or intestate succession to the public; (c) becomes known to the Recipient legal representatives, heirs, beneficiaries or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach immediate family members of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processLocked-up Shareholder, provided that the Recipient donee or donees, beneficiary or beneficiaries, heir or heirs or legal representatives thereof execute an Accession Agreement and agree to be bound by the terms of this Agreement applicable to such Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (ii) to any trust, partnership, limited liability company or other entity for the direct or indirect benefit of such Locked-up Shareholder or the Recipient’s Affiliate(simmediate family of such Locked-up Shareholder, provided that the trustee of the trust or the partnership or the limited liability company or other entity executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (iii) making to any immediate family member or other dependent, provided that the transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) give the Discloser as much prior notice thereof as is reasonably practicable so through (iii) above, provided that the Discloser may seek transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such protective orders Locked-up Shareholder; (v) as collateral in accordance with and subject to the terms and conditions of a loan agreement and any related pledge and security agreements, and following any subsequent transfer upon foreclosure on such collateral Subject Shares pledged in accordance with and subject to the terms and conditions of such loan agreement and any related pledge and security agreements, provided that each applicable lender party that forecloses on such collateral Subject Shares shall execute an Accession Agreement and agree to be bound by the terms of this Agreement applicable to such Locked-up Shareholder; provided, however, that if a transfer in accordance with this section (v) occurs, the Locked-up Shareholder shall provide the Company prior written notice informing it of any public filing, report or announcement made by or on behalf of the Locked-up Shareholder with respect thereto, and provided further that if such Locked-up Shareholder is required to file a report under the Exchange Act during the Lock-up Period, such Locked-up Shareholder shall include a statement in any such report to the effect that such transfer is in connection with such pledge; (vi) pursuant to an order of a court or regulatory agency or pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such Locked-up Shareholder (to the extent permissible by law), and provided further that, if such Locked-up Shareholder is required to file a report under the Exchange Act, such Locked-up Shareholder shall include a statement in such report to the effect that the filing relates to the transfer of securities pursuant to an order of a court or regulatory agency or to comply with any regulations related to the ownership of Shares unless such a statement would be prohibited by any applicable law, regulation or order of a court or regulatory authority; (vii) to the Company or its Affiliates upon death, disability or termination of employment, in each case, of such Locked-up Shareholder; (viii) to the Company (A) pursuant to the exercise, in each case on a “cashless” or “net exercise” basis, of any option expiring during the Lock-up Period to purchase Shares granted by the Company pursuant to any employee benefit plans or arrangements described in the Pricing Disclosure Package and the Prospectus (each as defined in the Underwriting Agreement), where any Shares received by such Locked-up Shareholder upon any such exercise will be subject to the terms of this Agreement, or (B) for the purpose of satisfying any taxes (including estimated taxes) due as a result of the exercise of any option expiring during the Lock-up Period to purchase Shares or the vesting or settlement of any restricted stock or restricted stock unit awards granted by the Company pursuant to employee benefit plans or arrangements described in the Pricing Disclosure Package and the Prospectus (each as defined in the Underwriting Agreement), in each case on a “cashless,” “net exercise” or “net settled” basis, where any Shares received by such Locked-up Shareholder upon any such exercise or vesting or settlement will be subject to the terms of this Agreement, provided that any filing under Section 16(a) of the Exchange Act in connection with such transfer shall indicate the reason for such disposition and that such transfer of Shares was solely to the Company; (ix) pursuant to a bona fide third-party tender offer, merger, consolidation or other confidentiality protection as itsimilar transaction made to all holders of the Shares involving a change of control of the Company following the consummation of the transactions contemplated by the Underwriting Agreement, provided that in its sole discretion and at its sole expensethe event that such tender offer, may electmerger, consolidation or other such transaction is not completed, such Locked-up Shareholder’s Shares shall remain subject to the provisions of this Agreement, and provided further that “change of control” as used herein, shall mean the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (iias defined in Section 13(d)(3) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must Exchange Act), or group of persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least fifty one percent (51%) of total voting shares of the Company. In the case of each transfer or distribution pursuant to clauses (i) through (ix) above, no public reports or filings reporting a reduction in beneficial ownership of Shares of the Company shall be so disclosed (with required or shall be voluntarily made by the Locked-up Shareholder during the Lock-up Period, unless such duty of cooperation not requiring public report or filing is required under the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Exchange Act.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give Notwithstanding anything to the Discloser contrary contained in this Section 11, the Company may omit from its proxy statement any Nominee and any information concerning such Nominee (including a Nominating Shareholder’s Supporting Statement) and no vote on such Nominee will occur (notwithstanding that proxies in respect of such vote may have been received by the Company), and the Nominating Shareholder may not, after the last day on which a Nomination Notice would be timely, cure in any way any defect preventing the nomination of such Nominee, if: (A) the Company receives a notice pursuant to Section 8 of this Article II that a shareholder intends to nominate a candidate for director at the annual meeting, whether or not such notice is subsequently withdrawn or made the subject of a settlement with the Company; (B) the Nominating Shareholder or the designated lead group member, as much prior notice thereof applicable, or any qualified representative thereof, does not appear at the meeting of shareholders to present the nomination submitted pursuant to this Section 11, the Nominating Shareholder withdraws its nomination or the chairman of the annual meeting declares that such nomination was not made in accordance with the procedures prescribed by this Section 11 and shall therefore be disregarded; (C) the Board of Directors determines that such Nominee’s nomination or election to the Board of Directors would result in the Company violating or failing to be in compliance with the Company’s By-Laws or certificate of incorporation or any applicable law, rule or regulation to which the Company is subject, including any rules or regulations of the primary stock exchange on which the Company’s shares of common stock are traded; (D) such Nominee was nominated for election to the Board of Directors pursuant to this Section 11 at one of the Company’s two preceding annual meetings of shareholders and either withdrew or became ineligible or received a vote of less than 25% of the shares of common stock cast for or against such Nominee; (E) such Nominee has been, within the past three years, an officer or director of a competitor, as defined for purposes of Section 8 of the ▇▇▇▇▇▇▇ Antitrust Act of 1914, as amended; or (F) the Company is reasonably practicable so notified, or the Board of Directors determines, that the Discloser may seek such protective orders Nominating Shareholder or other confidentiality protection as itthe Nominee has failed to continue to satisfy the eligibility requirements described in Section 11(c) hereof, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature any of the Confidential Information that must representations and warranties made in the Nomination Notice ceases to be so disclosed true and accurate in all material respects (with or omits a material fact necessary to make the statements made not misleading), such duty Nominee becomes unwilling or unable to serve on the Board of cooperation not requiring Directors or any material violation or breach occurs of the Recipient obligations, agreements, representations or Recipient’s Affiliates to initiate warranties of the Nominating Shareholder or participate in any litigation or incur more than de minimis out-of-pocket costs).such Nominee under this Section 11;

Exceptions. The obligations imposed Notwithstanding the forgoing, a Stockholder will not be required to comply with Section 3.2 in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) Any representations, warranties and covenants to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations, warranties and covenants related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations, warranties and covenants that (i) hereof shall not applysuch Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of such Confidential Information: Stockholder in connection with the transaction have been duly authorized, if applicable, (aiii) was known the documents to be entered into by such Stockholder have been duly executed by such Stockholder and delivered to the Recipient acquirer and are enforceable against such Stockholder in accordance with their respective terms, (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of such Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency and (v) reasonably relate to confidentiality, publicity and similar matters; (b) Such Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company; (c) The liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other person, and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Certificate); (d) Liability shall be limited to such Stockholder’s Affiliates pro rata share (determined in proportion to proceeds received by such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders in the aggregate but that in no event exceeds the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) Upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will have the right to receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of preferred stock of the Company will have the right to receive the same amount of consideration per share of such of a series of preferred stock of the Company as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will the right to receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) the aggregate consideration receivable by all holders of Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of such Preferred Stock and the holders of Common Stock are entitled in a Liquidation Transaction (assuming for this purpose that the Proposed Sale is a Liquidation Transaction) in accordance with (and in accordance with the priorities set forth in) the Certificate in effect immediately prior to the receipt Proposed Sale); provided, that, notwithstanding the foregoing, (A) any arrangements entered into between management of the Confidential Information from Company and the Discloser acquiring party (or Discloser’s Affiliates; (bits Affiliate) was, or becomes through no breach in connection with the Proposed Sale that are not otherwise violative of the Recipient’s terms hereof or the Certificate in effect immediately prior to the Proposed Sale, including any rollover of equity or debt securities by management into the acquiring party (or its Affiliate), shall not be deemed to violate or otherwise conflict with the terms of this Section 3.3(e) if approved by the Board of Directors, and (B) if the consideration to be paid in exchange for the Shares pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient such securities or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (ey) is required the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be disclosed by law or applicable legal processpaid to any such Stockholder in lieu thereof, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature against surrender of the Confidential Information that must Shares of such Stockholder which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair market value (as determined in good faith by the Company) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares of such Stockholder; and (f) Subject to Section 3(e) above, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be so disclosed (with received as a result of the Proposed Sale, all holders of such duty series or class of cooperation not requiring capital stock will be given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed by section 8(b) hereof Notwithstanding the foregoing, a Shareholder shall not applybe required to comply with Section 3.2 in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, or shall cease ownership and the ability to applyconvey title to such Shares, to any Confidential Information if or whenincluding representations and warranties that (i) the Shareholder holds all right, title and interest in and to the extent thatShares such Shareholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Shareholder have been duly executed by the Shareholder and delivered to the Recipient acquirer and are enforceable against the Shareholder in accordance with their respective terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Shareholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except that and only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the Company); (c) the liability for indemnification, if any, of such Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale is several and not joint with any other Person (except that and only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any Shareholder of any representations, warranties and covenants provided by all Shareholders with respect to the Company), and subject to the provisions of the Articles related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Shareholder in connection with such Proposed Sale; (d) liability shall be limited to such Shareholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Shareholder in connection with such Proposed Sale in accordance with the provisions of the Articles) of a negotiated aggregate indemnification amount that applies equally to all Shareholders but that in no event exceeds the amount of consideration otherwise payable to such Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Shareholder, the liability for which need not be limited as to such Shareholder; (e) upon the consummation of the Proposed Sale, (i) each holder of each class or series of Shares will receive the same form of consideration for their Shares of such class or series as is received by other holders in respect of their Shares of such same class or series, (ii) each holder of Common Shares will receive the same amount of consideration per Common Share as is received by other holders in respect of their Common Shares, and (iii) the aggregate consideration receivable by all Shareholders shall be allocated among the Shareholders on the basis of the relative liquidation preferences to which the Shareholders are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Articles in effect immediately prior to the receipt of Proposed Sale; provided, however, that, notwithstanding the Confidential Information from foregoing, if the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required consideration to be disclosed paid in exchange for any Shareholder’s Shares pursuant to this Section 3.3(e) includes any securities and due receipt thereof by any Shareholder would require under applicable law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser registration or qualification of such securities or of any person as much prior notice thereof as is reasonably practicable so that the Discloser may seek a broker or dealer or agent with respect to such protective orders securities or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(sthe provision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to Accredited Investors, the Company may cause to be paid to any such Shareholder in lieu thereof, against surrender of such Shareholders’ Shares, which would have otherwise been sold by such Shareholder, an amount in cash equal to the fair value (as determined in good faith by the Board) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information securities which such Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for such Shareholder’s Shares; and (f) subject to Section 3.3(e), if any holders of any class or series of Shares are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such class or series of Shares will be given the same option; provided, however, that must nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)Shareholders.

Exceptions. The obligations imposed by section 8(b) hereof shall not applyNotwithstanding the foregoing, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known Owner shall be entitled to assign its right, title and interest in and to this Agreement (and, in particular, any rights arising in relation to any insurance policy and any other right to collect any amount from Contractor) to the Recipient or Financing Parties by way of security for the Recipient’s Affiliates prior performance of obligations to such Financing Parties without the receipt consent of Contractor who, subject to any consent entered into by Contractor with the Confidential Information from Financing Parties, may further assign such rights, title and interest under this Agreement upon exercise of remedies by a Financing Party following a default by Owner under the Discloser or Discloser’s Affiliates; financing agreements entered into between Owner and the Financing Parties and (b) waseach Party shall be entitled to assign its right, or becomes through no breach of the Recipient’s (or obligation, title and interest in and to this Agreement to any of its Affiliates’) obligations hereunderAffiliates or in connection with a merger or acquisition of substantially all of the assets of a Party, known subject to the public; Contractor Performance Security and Equity Contribution Agreement, as applicable, and continued validity thereof. Contractor shall execute any consent and agreement or similar documents with respect to such an assignment described in subclause (ca) becomes known as the Financing Parties may reasonably request and acknowledges that such consent and agreement or similar document (which shall be reasonably acceptable to Contractor) may, among other things, require Contractor to give the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving Financing Parties notice of, and an opportunity to cure, any breach of this Agreement by Owner. Contractor shall reasonably cooperate with Owner in the negotiation and execution of any confidentiality obligation between such source and the Discloser reasonable amendment or Discloser’s affiliates; (d) is independently developed addition to this Agreement required by the Recipient Financing Parties; provided, however, that Contractor shall not be obligated without a Change Order under Section 11.4(b) to accept any undertaking imposed by any Financing Party which Contractor reasonably believes will have an actual and demonstrable increase in Contractor's costs and/or schedule. Contractor shall, at Owner's cost and subject to the confidentiality provisions set forth in Article 25, make available to the Financing Parties and other Persons involved in the financing or refinancing of the Facility who have a need-to-know (e.g., counsel to a lender or any such other Person, Governmental Authority, underwriters, rating agencies, independent reviewers and feasibility consultants) such information in the control of Contractor (including financial information concerning Contractor) as may reasonably be requested by Owner on behalf of the Financing Parties or the Recipient’s AffiliatesFinancing Parties' engineer with respect to financing of the Project or the Facility. Contractor further agrees that, without any use in connection with the financing or refinancing of or reference the Facility, Contractor shall, at the request and expense of Owner, provide an opinion of counsel as to the Discloser’s Confidential Information; or (e) is required enforceability against Contractor of this Agreement until expiration of the last Warranty Period. Any authorized assignment of this Agreement by either Party shall relieve such Party of its obligations hereunder at such time as the authorized successor agrees in writing to be disclosed bound by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSIONassigning Party's obligations hereunder. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Any purported assignment of this Agreement in violation of this Section 26.2 shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in be null and void and shall be ineffective to relieve either Party of its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)obligations hereunder.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known Notwithstanding the restrictions set forth in Section 5.01 of this Second Supplemental Indenture, the Company and its Subsidiaries will be permitted to incur, issue, assume or guarantee Indebtedness secured by a Lien on any Principal Property or on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property which would otherwise be subject to the Recipient or restrictions set forth in Section 5.01 of this Second Supplemental Indenture without equally and ratably securing the Recipient’s Affiliates prior to Notes and the receipt Securities Guarantees, if as of the Confidential Information from time of such incurrence, issuance, assumption or guarantee, after giving effect thereto, the Discloser aggregate principal amount of all Indebtedness secured by ▇▇▇▇▇ on any Principal Property or Discloser’s Affiliates; on any Capital Stock or Indebtedness of any Subsidiary of the Company owning any Principal Property (not including Indebtedness secured by ▇▇▇▇▇ permitted under clauses (a) through (i) of Section 5.01), together (without duplication) with the aggregate amount of Attributable Debt outstanding in respect of sale and leaseback transactions entered into pursuant Section 5.03(b), does not at the time exceed 15% of Consolidated Total Assets of the Company calculated as of the time of such incurrence, issuance, assumption or guarantee of secured Indebtedness. (b) wasNotwithstanding the restrictions set forth in Section 5.02 of this Second Supplemental Indenture, or becomes through no breach the Company and its Subsidiaries may enter into any sale and leaseback transaction which would otherwise be prohibited by Section 5.02, if as of the Recipient’s time of entering into such sale and leaseback transaction, after giving effect thereto, the aggregate amount of all Attributable Debt with respect to sale and leaseback transactions (or any not including Attributable Debt with respect to sale and leaseback transactions permitted under clauses (a) through (f) of its Affiliates’) obligations hereunderSection 5.02), known to the public; together (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(sduplication) with the Discloser in protecting such confidential aggregate principal amount of all Indebtedness secured by Liens on any Principal Property or proprietary nature on any Capital Stock or Indebtedness of any Subsidiary of the Confidential Information that must be so disclosed (with Company owning any Principal Property outstanding pursuant to Section 5.03(a), does not at the time exceed 15% of Consolidated Total Assets of the Company calculated as of the time of entry into such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)sale and leaseback transaction.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to The provisions of Section 11.1 shall not preclude the Recipient or the Recipient’s Affiliates prior to the receipt receiving Party from disclosing Confidential Information of the other Party: (i) To the extent such Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law the receiving Party to comply with Applicable Laws or applicable legal processto defend or prosecute litigation, provided PROVIDED that the Recipient or the Recipient’s Affiliate(s) making receiving Party provides prior written notice of such disclosure *** CERTAIN INFORMATION ON to the disclosing Party, provides the disclosing Party, to the extent possible, with sufficient time and opportunity to obtain a protective order for such Confidential Information and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure; (ii) In connection with discussions and negotiations with its officers, directors and shareholders as may be deemed necessary by the Company’s Chief Executive Officer or Chief Financial Officer to procure support and approval of the transactions contemplated hereunder; (iii) In order to comply with Applicable Laws governing disclosures under the receiving Party’s financial statements, if, in the reasonable opinion of the receiving Party’s auditors or Chief Financial Officer, such disclosure is necessary for such compliance; (iv) To satisfy the due diligence exercise by any Third Party (including potential Sublicensees, investors, investment bankers, lenders, acquirers, merger partners, or other potential financial partners, and their attorneys and agents) provided such Third Party has executed a confidentiality agreement in a form consistent with the terms hereof to protect the confidentiality of such information; [†] DESIGNATES PORTIONS OF THIS PAGE HAS DOCUMENT THAT HAVE BEEN OMITTED AND PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (iv) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek In connection with discussions and negotiations with any Person in connection with a Sublicense or permitted subcontract hereunder, PROVIDED such protective orders or other Person has executed a confidentiality protection as it, agreement in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) a form consistent with the Discloser in protecting terms hereof to protect the confidentiality of such confidential or proprietary nature information; or (vi) To their respective legal counsel, accountants and auditors as necessary. (b) Specific information shall not be deemed to be within any of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur foregoing exclusions merely because it is embraced by more than de minimis out-of-pocket costs)general information falling within these exclusions.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to During the Recipient or Escrow Period, the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or Holder may Deal in any of its Affiliates’Voluntary Escrow Shares and a Controller may Deal in its Controller Interests if the Dealing arises solely as a result of: (i) obligations hereunder, known the acceptance a bona fide third party offer under a Takeover Bid in relation to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processthose Voluntary Escrow Shares, provided that the Recipient or holders of at least half of the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so Shares that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electare not subject to any voluntary escrow deed, and to which the offers under the bid relate, have accepted the bid; or (ii) reasonably cooperate(s) with the Discloser in protecting such confidential transfer or proprietary nature cancellation of the Confidential Information Voluntary Escrow Shares in the Company as part of a scheme of arrangement under Part 5.1 of the Corporations Act, provided that must be so disclosed (the scheme of arrangement has received all necessary approvals, including all such necessary court and shareholder approvals, provided, in each case, that if for any reason any or all Voluntary Escrow Shares are not transferred or cancelled in accordance with such duty a Takeover Bid or scheme of cooperation arrangement (including because the Takeover Bid does not requiring become unconditional), then the Recipient Holder agrees that the restrictions applying to the Voluntary Escrow Shares under this deed will continue to apply and without limiting the foregoing, the Holding Lock will be reapplied to all Voluntary Escrow Shares not so transferred or Recipient’s Affiliates cancelled. For the avoidance of doubt, the Controller can make a Dealing if required to initiate or participate enable the Holder to take any of the actions in this paragraph 5.1. (b) During the Escrow Period, the Holder may Deal in any litigation of its Voluntary Escrow Shares to the extent the Dealing is required by applicable law (including an order of a court of competent jurisdiction), provided that any transferee of the Voluntary Escrow Shares will no longer be bound by any Holding Lock or incur more than de minimis out-of-pocket costsrestrictions on Dealing. (c) Notwithstanding any condition to the contrary in this deed, during the Escrow Period, the Holder or Controller may Deal in any of its Voluntary Escrow Shares or Controller Interests upon the death or incapacity of the Holder or Controller, provided that the transferee will no longer be bound by any Holding Lock or restrictions on Dealing in respect of the Voluntary Escrow Shares or Controller Interests (as applicable).

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 6.3(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (i) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (A) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aB) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms and (D) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (ii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (iii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (iv) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (v) upon the consummation of the Proposed Sale, (A) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (B) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (C) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (D) unless the holders of at least a Majority in Interest of the Series A-1 Preferred Stock elect otherwise by written notice given to the Company at least ten (10) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; and (cvi) becomes known subject to clause (v) above, requiring the same form of consideration to be available to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach holders of any confidentiality obligation between such source and single class or series of capital stock, if any holders of any capital stock of the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference Company are given an option as to the Discloser’s Confidential Information; or (e) is required form and amount of consideration to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser received as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature a result of the Confidential Information that must Proposed Sale, all holders of such capital stock will be so disclosed (with such duty of cooperation not requiring given the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)same option.

Exceptions. The obligations imposed by section 8(b(1) hereof shall not applySubject to Section 12(B)(1)(c), or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt Board of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as itDirectors, in its sole discretion discretion, may exempt a Person from the limitation on a Person Beneficially Owning Class B Preferred Stock in excess of the Beneficial Ownership Limit if the Board of Directors obtains such representations and at undertakings from such Person as are reasonably necessary to ascertain that no individual's Beneficial Ownership of such Class B Preferred Stock will violate the Beneficial Ownership Limit or that any such violation will not cause the Company to fail to qualify as a REIT under the Code, and agrees that any violation of such representations or undertaking (or other action which is contrary to the restrictions contained in Section 12(B) of these Articles Supplementary) or attempted violation will result in such Class B Preferred Stock being transferred to a Trust in accordance with Section 12(B)(2) of these Articles Supplementary. (2) Subject to Section 12(B)(1)(c), the Board of Directors, in its sole expensediscretion, may elect, and (ii) reasonably cooperate(s) with exempt a Person from the Discloser limitation on a Person Constructively Owning Class B Preferred Stock in protecting such confidential or proprietary nature excess of the Confidential Information Constructive Ownership Limit if such Person does not and represents that must be so disclosed it will not own, actually or Constructively, an interest in a tenant of the Company (or a tenant of any entity owned in whole or in part by the Company) that would cause the Company to own, actually or Constructively more than a 9.8% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Company obtains such representations and undertakings from such Person as are reasonably necessary to ascertain this fact and agrees that any violation or attempted violation will result in such Class B Preferred Stock being transferred to a Trust in accordance with Section 12(B)(2) of these Articles Supplementary. Notwithstanding the foregoing, the inability of a Person to make the certification described in this Section 12(I)(2) shall not prevent the Board of Directors, in its sole discretion, from exempting such duty Person from the limitation on a Person Constructively Owning Class B Preferred Stock in excess of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate Ownership Limit if the Board of Directors determines that the resulting application of Section 856(d)(2)(B) of the Code would affect the characterization of less than 0.5% of the gross income (as such term is used in Section 856(c)(2) of the Code and analogous provisions of applicable state law) of the Company in any litigation taxable year, after taking into account the effect of this sentence with respect to all other Class B Preferred Stock to which this sentence applies. (3) Prior to granting any exception pursuant to Sections 12(I)(1) or incur more than de minimis out-of-pocket costs)(2) of these Articles Supplementary, the Board of Directors may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Company's status as a REIT.

Exceptions. The obligations imposed by section 8(bNotwithstanding Section 6.02 and Section 6.03(a), at any time prior to obtaining the Company Shareholder Approval: (i) hereof shall not applythe Company, directly or shall cease to applyindirectly through advisors, to agents or other intermediaries, may (A) engage in negotiations or discussions with any Confidential Information if or whenThird Party and its Representatives that, and subject to the extent thatCompany’s compliance with Section 6.03(a), has made after the date of this Agreement a Company Acquisition Proposal that the Board of Directors of the Company determines is or could reasonably be expected to lead to a Company Superior Proposal and (B) furnish to such Confidential Information: (a) was known Third Party or its Representatives non-public information relating to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (Company or any of its Affiliates’Subsidiaries pursuant to a confidentiality agreement (a copy of which shall be provided for informational purposes only to Acquiror) obligations hereunder, known with such Third Party with terms no less favorable to the publicCompany than those contained in the confidentiality agreement dated November 3, 2009 between the Company and Acquiror (as amended, the “Company Confidentiality Agreement”); provided that (c1) becomes known such confidentiality agreement may contain less restrictive provisions (including no standstill restriction), in which case the Company Confidentiality Agreement shall be deemed to be amended to contain only such less restrictive provision(s), and (2) all such information (to the Recipient extent that such information has not been previously provided or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (dmade available to Acquiror) is independently developed by provided or made available to Acquiror, as the Recipient case may be, prior to or substantially concurrently with the Recipient’s Affiliatestime it is provided or made available to such Third Party); and (ii) following receipt of a Company Superior Proposal, without and subject to compliance with Section 6.03(d), the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Laws or (B) cause the Company to terminate this Agreement and concurrently with such termination, upon payment of the Termination Fee pursuant to Section 10.01(d)(i), enter into a written agreement concerning such Company Superior Proposal. In addition, nothing contained herein shall prevent the Board of Directors of the Company from (x) complying with Rule 14e -2(a) under the 1934 Act with regard to a Company Acquisition Proposal so long as any use of action taken or reference statement made to so comply is consistent with this Section 6.03 or (y) making any disclosure to the Discloser’s Confidential InformationShareholders if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure so to make such disclosure would be inconsistent with its obligations under Applicable Law; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient foregoing shall not limit or modify the Recipient’s Affiliate(s) making effect that such action, statement or disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give has under the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature terms of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)this Agreement.

Exceptions. The obligations imposed Notwithstanding the foregoing, a Designated Holder will not be required to comply with Section 5.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) Any representations and warranties to be made by section 8(bsuch Designated Holder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Preferred Stock or Common Stock, as appropriate, including, but not limited to, representations and warranties that (i) hereof shall not applythe Designated Holder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatPreferred Stock or Common Stock, as appropriate such Confidential Information: Designated Holder purports to hold, free and clear of all liens and encumbrances, (aii) was known the obligations of the Designated Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Designated Holder have been duly executed by the Designated Holder and delivered to the Recipient acquirer and are enforceable against the Designated Holder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Designated Holder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) The Designated Holder shall not be liable for the inaccuracy of any representation or warranty made by any other person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) The liability for indemnification, if any, of such Designated Holder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or the RecipientDesignated Holders in connection with such Proposed Sale, is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Designated Holder in connection with such Proposed Sale; (d) Liability shall be limited to such Designated Holder’s Affiliates applicable share (determined based on the respective proceeds payable to each Designated Holder in connection with such Proposed Sale in accordance with the provisions of the Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Designated Holders but that in no event exceeds the amount of consideration otherwise payable to such Designated Holder in connection with such Proposed Sale, except with respect to claims related to fraud by such Designated Holder, the liability for which need not be limited as to such Designated Holder; (e) Upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s Preferred Stock or Common Stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each Holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other Holders in respect of their shares of such same series, (iii) each Major Common Holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the Required Preferred Stockholder Vote elects to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all Designated Holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Preferred Stock pursuant to this Section 5.3(e) includes any securities and due receipt thereof by any Designated Holder would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (y) the provision to any Designated Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Designated Holder in lieu thereof, against surrender of the Preferred Stock or Common Stock, as appropriate, which would have otherwise been sold by such Designated Holder, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Designated Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Preferred Stock or Common Stock, as appropriate; and (f) Subject to clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Section 5.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed by section 8(bNotwithstanding any other provisions of this Agreement to the contrary, the provisions of Section 5.21(a) hereof shall not apply, or shall cease to apply, to apply to: (i) any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt Person who becomes an Affiliate of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach either Seller by virtue of the Recipient’s (a Change of Control of ING or any of its Affiliates’subsidiaries except that Section 5.21(a) obligations hereunder, known shall continue to the publicapply to each Seller and its subsidiaries in such event; or (cii) becomes known to the Recipient any reinsurance agreement or Recipient’s Affiliates from sources similar arrangement written by an ING Affiliate other than the Discloser or Discloser’s Affiliates Sellers that is limited to reinsuring: (A) the risk of accidental death under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliatesindividual life insurance policies; (dB) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsingle premium pre-need life insurance policies; or (eC) is required to be disclosed individual life insurance policies originating in conjunction with a reinsurance pool sponsored by law Reinsurance Management Associates, Inc.; or (iii) the management of the Excluded Business; or (iv) the acquisition of any block of direct insurance business by means of assumption or applicable legal process, provided that the Recipient indemnity reinsurance; or (v) any reinsurance transaction with any Affiliate of either Seller or the Recipient’s Affiliate(sreinsurance of the Excluded Undelivered Contracts; or (vi) making any reinsurance of any new business with a Person that is not an Affiliate of either Seller pursuant to reinsurance arrangements entered into with such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Person at a time when such Person was an Affiliate of such Seller; or (ivii) give any reinsurance arrangement or agreement currently in effect or that will come into effect pursuant to this Agreement (including without limitation the Discloser Industry Risk Retrocession Agreements); or (viii) investments in the ordinary course of business by ING, Sellers or their Affiliates in not more than nine and nine/tenths percent (9.9%) of the outstanding voting stock or stock equivalents of any entity engaging in any lines of business constituting a Competing Business; (ix) any Business recaptured by either Seller pursuant to the Reinsurance Agreements; (x) any transaction or transactions, as much prior notice thereof as is reasonably practicable so that a result of which ING or any of its Affiliates acquires any interest in any Person engaging in a Competing Business, if the Discloser may seek total revenues of such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electPerson attributable to the Competing Business for the fiscal year immediately preceding such acquisition are less than 20% of such Person's total revenues for the fiscal year immediately preceding such acquisition, and the retention of such interest; or (iixi) reasonably cooperate(s) with the Discloser in protecting such confidential any transaction or proprietary nature transactions, as a result of the Confidential Information that must be so disclosed (with such duty which ING or any of cooperation not requiring the Recipient or Recipient’s its Affiliates to initiate or participate acquires any interest in any litigation Person engaging in a Competing Business, if the total revenues of such Person attributable to the Competing Business for the fiscal year immediately preceding such acquisition are greater than 20% of such Person's total revenues for the fiscal year immediately preceding such acquisition if ING or incur more than de minimis out-of-pocket costs)its Affiliates as applicable dispose of such Competing Business within eighteen (18) months after such acquisition.

Exceptions. The obligations imposed by section 8(bNotwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) hereof unless: (a) the Stockholder shall not applybe liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, or shall cease to apply, to any Confidential Information if or when, and other than the Company (except to the extent thatthat funds may be paid out of an escrow established to cover breach of representations, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt warranties and covenants of the Confidential Information from the Discloser or Discloser’s Affiliates; Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (b) wasthe liability for indemnification, or becomes through no if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Recipient’s (or Company as well as breach by any stockholder of any of its Affiliates’) obligations hereunderidentical representations, known warranties and covenants provided by all stockholders), and is pro rata in proportion to the publicamount of consideration paid to such Stockholder in connection with such Proposed Sale (as determined in accordance with the provisions of the Restated Certificate); and (c) becomes known liability shall be limited to such Stockholder’s applicable share (determined based on the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between respective proceeds payable to each Stockholder in connection with such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, Proposed Sale in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) accordance with the Discloser in protecting such confidential or proprietary nature provisions of the Confidential Information Restated Certificate) of a negotiated aggregate indemnification amount that must be so disclosed (in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such duty of cooperation Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not requiring the Recipient or Recipient’s Affiliates be limited as to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)such Stockholder.

Exceptions. The obligations imposed by section 8(bNotwithstanding any other provisions of this Section 2.14, (A) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: that (aand for so long as) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; or all Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds received by any Foreign Subsidiary of Xerium (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser Euro Borrower) giving rise to mandatory prepayment pursuant to Section 2.14(a) or Discloser’s Affiliates under circumstances not involving Section 2.14(b) (each event giving rise to such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds being referred to as a “Specified Asset Sale”), as applicable, are prohibited or delayed by any breach applicable Requirement of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference Law from being repatriated to the Discloser’s Confidential Information; jurisdiction of organization of Xerium, the portion of such Net Asset Sale Proceeds or (e) is Net Insurance/Condemnation Proceeds, as applicable, so affected will not be required to be disclosed applied to prepay Loans at the times provided in this Section 2.14 but may be retained by law the applicable Credit Party or Subsidiary so long as the applicable legal processlocal Requirement of Law will not permit such repatriation to Xerium (Xerium hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably required by applicable local Requirement of Law to permit such repatriation), provided that and once such repatriation of any such affected Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, is permitted under the Recipient applicable local Requirement of Law, such repatriation will be promptly effected and such repatriated Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give prepayment of the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electLoans pursuant to this Section 2.14, and (iiB) to the extent that Xerium has determined in good faith that repatriation of any of or all the Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, to the jurisdiction of organization of Xerium would directly result in a material tax liability to Xerium and its Subsidiaries, taken as a whole, with respect to such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds (Xerium hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably cooperate(srequired to mitigate any such material tax liability), as applicable, the Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, so affected may be retained by the applicable Credit Party or Subsidiary; provided, that, in the case of this clause (B), on or before the date on which any Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, so retained by such Subsidiary would otherwise have been required to be applied to prepayments pursuant to Section 2.14(a) with or Section 2.14 (b), Xerium causes to be applied an amount equal to such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, to such prepayments as if such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, had been received by Xerium rather than such Subsidiary, less the Discloser amount of additional taxes that would have been payable or reserved against if such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds had been so repatriated (or, if less, the Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds that would be calculated if received by such Subsidiary (but without duplication of any taxes deducted in protecting calculating such confidential Net Asset Sale Proceeds or proprietary nature Net Insurance/Condemnation Proceeds)) in satisfaction of such prepayment requirement; provided, further, that, in the case of clauses (A) or (B), to the extent that (x) any Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, are received by the Euro Borrower or (y) any Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds, as applicable, received by such Subsidiary may be repatriated to the jurisdiction of organization of the Confidential Information Euro Borrower without violation of any applicable local Requirement of Law or without directly resulting in a material tax liability to Xerium and its Subsidiaries, taken as a whole (it being understood that must Xerium and the Euro Borrower hereby agree to cause the applicable Subsidiary to promptly take all actions reasonably required by applicable local Requirement of Law to permit such repatriation or to mitigate any such material tax liability), any such Net Asset Sale Proceeds or Net Insurance/Condemnation Proceeds shall be so disclosed (applied to prepay the Euro Term Loans in accordance with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costsSection 2.15(b).

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known to the Recipient or the Recipient’s Affiliates prior to the receipt of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give The Board of Directors may, but in no case shall the Discloser Board of Directors be required to, waive, in whole or in part, application of the Ownership Limit or Excepted Holder Limit to a Person otherwise subject to such limit and/or establish, in lieu of the Ownership Limit or Excepted Holder Limit, or any portion or aspect thereof, then applicable to such Person, an Excepted Holder Limit (or a new Excepted Holder Limit) as much prior notice thereof as is reasonably practicable so applicable to the ownership, beneficial or otherwise, of Common Stock and/or Equity Stock and/or Securities by such Person, if it concludes that the Discloser ownership of Common Stock and/or Equity Stock and/or Securities by such Person will not (A) result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code or (B) otherwise cause the Corporation to fail to qualify as a REIT under the Code; provided, however, that (i) the Board of Directors obtains from such Person such representations and undertakings, if any, as the Board of Directors may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expenserequire (including, may electwithout limitation, an agreement as to a reduced Ownership Limit or Excepted Holder Limit for such Person), and (ii) reasonably cooperate(ssuch Person agrees in writing that any violation or attempted violation of any such or any other limitations as the Board of Directors may establish for such Person, or such other restrictions as the Board may in its sole discretion impose with respect to such Person at the time of granting such waiver or exception, will result in transfer to the Share Trust of Common Stock, Equity Stock or Securities pursuant to Section 16.01(c). In making any determination to waive application of the Ownership Limit or Excepted Holder Limit or to establish an Excepted Holder Limit (or a new Excepted Holder Limit) for any Person, the Board of Directors, in its sole and absolute discretion, may, but shall not be required to, receive either a certified copy of a ruling from the Internal Revenue Service or an opinion of counsel satisfactory to the Board of Directors that concludes that the ownership of Equity Stock or Securities by such Person will not (A) result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code or (B) otherwise cause the Corporation to fail to qualify as a REIT under the Code. Unless and until the Board of Directors waives the application of the Ownership Limit or Excepted Holder Limit as applicable to any Person (or even thereafter insofar as such waiver did not or does not operate to relieve some restrictive portion or aspect of the Ownership Limit or Excepted Holder Limit as applicable to such Person), the Ownership Limit and/or Excepted Holder Limit, as applicable, shall apply to such Person, notwithstanding the fact that if such Person were otherwise to Acquire Equity Stock or Securities in excess of the Ownership Limit or Excepted Holder Limit, as applicable, such Acquisition would not adversely affect the Corporation's qualification as a REIT under the Code. (ii) If the Board of Directors makes a determination to waive the Ownership Limit or Excepted Holder Limit, or to establish an Excepted Holder Limit (or a new Excepted Holder Limit) as applicable to any Person, the Board may revoke the waiver, or reduce the Excepted Holder Limit applicable to an Excepted Holder, only (a) with the Discloser in protecting written consent of such confidential Person at any time, or proprietary nature (b) pursuant to the terms and conditions of the Confidential Information that must be so disclosed (representations and undertakings, if any, entered into with such duty Person in connection with the granting of cooperation not requiring the Recipient waiver or Recipient’s Affiliates the establishment of the Excepted Holder Limit for such Person. No Excepted Holder Limit shall be reduced to initiate a percentage that is less than the Ownership Limit. Notwithstanding the foregoing, nothing in this Section 16.01(f)(ii) is intended to limit or participate modify the restrictions on ownership contained in any litigation or incur more than de minimis out-of-pocket costsSection 16.01(b) hereof and the authority of the Board of Directors under this Section 16.01(f).

Exceptions. The obligations imposed Notwithstanding the foregoing, a Stockholder will not be required to comply with Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”), unless: (a) any representations and warranties to be made by section 8(bsuch Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including, but not limited to, representations and warranties that (i) hereof shall not applythe Stockholder holds all right, or shall cease to apply, to any Confidential Information if or when, title and interest in and to the extent thatShares such Stockholder purports to hold, such Confidential Information: free and clear of all liens and encumbrances, (aii) was known the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the Recipient acquirer and are enforceable against the Stockholder in accordance with their respective terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the Recipientterms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (c) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale; (d) liability shall be limited to such Stockholder’s Affiliates applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (e) upon the consummation of the Proposed Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the Series A Preferred Stock (voting together as a single class on an as-converted to Common Stock basis) elect to receive a lesser amount by written notice given to the Company at least 10 days prior to the receipt effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Confidential Information from Preferred Stock and Common Stock shall be allocated among the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach holders of Preferred Stock and Common Stock on the basis of the Recipientrelative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s (or any Certificate of its Affiliates’) obligations hereunder, known Incorporation in effect immediately prior to the publicProposed Sale; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (cx) becomes known to the Recipient registration or Recipient’s Affiliates from sources other than the Discloser qualification of such securities or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between person as a broker or dealer or agent with respect to such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Informationsecurities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; and (f) subject to clause (e) is required above, requiring the same form of consideration to be disclosed by law available to the holders of any single class or applicable legal processseries of capital stock, provided that the Recipient or the Recipient’s Affiliate(s) making such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may elect, and (ii) reasonably cooperate(s) with the Discloser in protecting such confidential or proprietary nature if any holders of any capital stock of the Confidential Information Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that must nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be so disclosed (with ineligible to receive as a result of such duty of cooperation not requiring holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Recipient or RecipientCompany’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)stockholders.

Exceptions. The obligations imposed by section 8(brestrictions in Sections 9(a), 9(b) hereof and 9(c) shall not applyprohibit or restrict any of the Purchaser, the Guarantor or shall cease their subsidiaries from: (i) tendering its Class B Shares to apply, to any Confidential Information if or when, and to a take-over bid for the extent Class B Shares that, such Confidential Information: (aA) was known to a majority of the Recipient board of directors of Teck have affirmatively recommended that holders of Class B Shares accept; or (B) is a Permitted Bid, provided that in such case such Class B Shares may be tendered only during the Recipient’s Affiliates extension of the expiry of the take-over bid contemplated by clause (v) of Section 9(f) following satisfaction of the requirements in clause (iii) of Section 9(f); (ii) entering into a Permitted Lock-up Agreement; (iii) tendering, during the three day period prior to the receipt expiry of such take-over bid in accordance with its terms, its Class B Shares to a take-over bid for the Class B Shares that is, on and as at the date of such tender, a Highest Bid, but only if, on the date of such tender, Teck does not have in effect a shareholder rights plan with customary terms and conditions and containing a “permitted bid” concept; (iv) disposing of its Class B Shares by operation of a statutory amalgamation, statutory arrangement or other statutory procedure involving Teck; or (v) engaging in hedging activities involving index-linked instruments, provided that securities of Teck represent not more than 10% of the Confidential Information from underlying index. In addition, notwithstanding the Discloser foregoing provisions of this Section 9, transfers of Class B Shares shall be permitted without restriction to the Guarantor or Discloser’s Affiliates; (b) was, or becomes through no breach any wholly-owned subsidiaries of the Recipient’s (or any of its Affiliates’) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal processGuarantor, provided that the Recipient Guarantor or any suchwholly-owned subsidiary of the RecipientGuarantor to whom Class B Shares are transferred shall, prior to any such transfer, agree to be bound by and comply with the provisions of this Section 9, and shall deliver to Teck a duly executed undertaking to such effect in form and substance satisfactory to Teck, acting reasonably. In addition, and for greater certainty, if the Purchaser’s Affiliate(s) making Class B Shares are convertible into Class A common shares in accordance with their terms as a result of a take-over bid for the Class A common shares, then the Purchaser shall not be prohibited from converting its Class B Shares in accordance with their terms and tendering the resulting Class A common shares to the applicable take-over bid for such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSIONClass A common shares. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSFor the purposes of this Section 9, the term “take-over bid” shall include a tender offer conducted pursuant to applicable U.S. securities law requirements and the term “take-over bid circular” shall include a tender offer statement. Notwithstanding anything in this Agreement, it shall not be considered a breach of Section 9 if any external investment manager of the Guarantor or its subsidiaries purchases securities of Teck on behalf of the Guarantor or its subsidiaries in the ordinary course of the manager’s investment management functions and without direction to do so from the Guarantor and/or its subsidiaries, provided that (i) give the Discloser as much prior notice thereof as is reasonably practicable Guarantor and its subsidiaries use commercially reasonable efforts to instruct such managers not to acquire securities of Teck; and (ii) the Guarantor and its subsidiaries cause the manager to sell any such securities of Teck that are so that acquired by the Discloser may seek later of (x) 30 days after the Guarantor or the Purchaser become aware of any such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electpurchase, and (iiy) reasonably cooperate(s) with if such securities cannot be sold during such period due to the Discloser in protecting requirements of any applicable blackout period or securities law restriction, 7 days after the end of such confidential blackout period or proprietary nature of the Confidential Information that must be so disclosed (with such duty of cooperation not requiring the Recipient or Recipient’s Affiliates to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)securities law restriction.

Exceptions. The obligations imposed by section 8(b) hereof shall not apply, or shall cease to apply, to any Confidential Information if or when, and to the extent that, such Confidential Information: (a) was known Notwithstanding anything contained in Section VI of this Agreement, the restrictions set forth in Section VI of this Agreement with respect to the Recipient or the Recipient’s Affiliates prior Transfer of any Equity Shares and/or Preferred Shares shall not apply to the receipt any Transfer of the Confidential Information from the Discloser or Discloser’s Affiliates; (b) was, or becomes through no breach of the Recipient’s (or Equity Shares and/or Preferred Shares by SAIF to any of its Affiliates’Affiliates (an “SAIF Affiliate”) obligations hereunder, known to the public; (c) becomes known to the Recipient or Recipient’s Affiliates from sources other than the Discloser or Discloser’s Affiliates under circumstances not involving any breach of any confidentiality obligation between such source and the Discloser or Discloser’s affiliates; (d) is independently developed by the Recipient or the Recipient’s Affiliates, without any use of or reference to the Discloser’s Confidential Information; or (e) is required to be disclosed by law or applicable legal process, provided that at the Recipient or the Recipient’s Affiliate(s) making time of such disclosure *** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall Transfer, such SAIF Affiliate (i) give the Discloser as much prior notice thereof as is reasonably practicable so that the Discloser may seek such protective orders or other confidentiality protection as it, in its sole discretion and at its sole expense, may electnot a Competitor, and (ii) reasonably cooperate(s) with the Discloser does not hold an equity interest in protecting such confidential a Competitor that represents 20% or proprietary nature more of the Confidential Information paid-up equity share capital or preferred/preference share capital of such Competitor. Each such SAIF Affiliate shall, as a condition to the effectiveness of any Transfer of Equity Shares and/or Preferred Shares, deliver to the Company such SAIF Affiliate’s deed of adherence agreeing to be bound by the provisions of this Agreement (including this Section 6.5(a) as it applies to SAIF) upon consummation of the Transfer. (b) Notwithstanding anything contained in Section VI of this Agreement, the restrictions set forth in Section VI of this Agreement with respect to the Transfer of any Equity Shares and/or Preferred Shares shall not apply to (i) any Transfer of Equity Shares and/or Preferred Shares by any of the Founders to Travogue, or by Travogue to any of the Founders, or any inter-se Transfer amongst the Founders, or by any of the Founders to their Relatives provided that must such Transfers relate for the purpose of tax planning, estate planning and for such similar purposes, and that such Relative of the Founders shall, in each case, as a condition to the effectiveness of any Transfer of Equity Shares and/or Preferred Shares, deliver to the Company such Relative’s deed of adherence agreeing to be so disclosed bound by the provisions of this Agreement (including this Section 6.5(b) as it applies to the Founders and Travogue) upon consummation of the Transfer. (c) Notwithstanding anything contained in Section VI of this Agreement, the restrictions set forth in Section VI of this Agreement with respect to the Transfer of any Equity Shares and/or Preferred Shares shall not apply to any Transfer of Equity Shares and/or Preferred Shares by Helion, Tiger or Sierra to any of its Affiliates provided that at the time of such duty Transfer, such Affiliate is not a Competitor. Each such Affiliate shall, as a condition to the effectiveness of cooperation not requiring any Transfer of Equity Shares and/or Preferred Shares, deliver to the Recipient or RecipientCompany such Affiliate’s Affiliates deed of adherence agreeing to initiate or participate in any litigation or incur more than de minimis out-of-pocket costs)be bound by the provisions of this Agreement (including this Section 6.5(c) as it applies to Helion and Sierra) upon consummation of the Transfer.