Common use of Notwithstanding Section 6 Clause in Contracts

Notwithstanding Section 6. 4.1, prior to the receipt of the Shareholder Approval, the Company Board, directly or indirectly through any Company Representative, may, subject to Section 6.4.3 (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and an independent financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.

Notwithstanding Section 6. 4.103(a) to the contrary, if at any time prior to obtaining the receipt of the Shareholder Company Stockholder Approval, the Company BoardBoard receives an unsolicited bona fide written Acquisition Proposal made after the date of this Agreement which has not resulted from a material breach of this Section 6.03, directly or indirectly through any the Company RepresentativeBoard may, mayprior to obtaining the Company Stockholder Approval and, subject to compliance with this Section 6.4.3 6.03(b), Section 6.03(c) and Section 6.03(e), (i) participate engage in negotiations or discussions with any third party Third Party and its Representatives that has made (and not withdrawn) a bona fide, unsolicited Takeover such Acquisition Proposal in writing that if the Company Board believes determines in good faith, after consultation with the Company’s outside legal counsel and an independent financial advisoradvisors, that such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public Third Party and its Representatives and financing sources nonpublic information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company than those contained in the Acceptable Confidentiality Agreement (provided that a copy of which confidentiality agreement each such Acceptable Confidentiality Agreement shall be promptly provided to Parent within twenty-four (in all events within 24 hours24) provided for informational purposes only hours of execution of such Acceptable Confidentiality Agreement), and (iii) subject to ParentSection 6.03(e), (iiiA) following receipt of and on account of make an Adverse Recommendation Change in response to a Superior Proposal, make a Company Adverse Recommendation Change, or and/or (ivB) take any action that any court of competent jurisdiction orders terminate this Agreement in accordance with Section 10.01(d)(i) in order to cause the Company or its Subsidiaries to take (which order remains unstayed)enter into a definitive merger or purchase agreement with respect to a Superior Proposal, but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.clauses

Notwithstanding Section 6. 4.1, prior to the receipt of the Shareholder Approval, the Company Board, directly or indirectly through any Company Representative, may, subject to Section 6.4.3 6.4.3, and provided that the Company is not then in breach of Section 6.4.1 (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and an independent financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such the third party that has made such Takeover Proposal non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), except that such agreement need not contain any standstill or similar provision, (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation ChangeChange in accordance with the provisions of Section 6.4.4, or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order Order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the The Company Board from disclosing shall be permitted to disclose to the Company’s stockholders shareholders a position position, otherwise in compliance with the terms and conditions of this Agreement, contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law. Nothing in this Agreement shall prohibit the Company Board from complying with its disclosure obligations under U.S. federal or state Law.

Notwithstanding Section 6. 4.1, prior to the receipt of the Shareholder Approval, the Company Board, directly or indirectly through any Company Representative, may, subject to Section 6.4.3 6.4.3, and provided that the Company is not then in breach of Section 6.4.1 (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and an independent financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such the third party that has made such Takeover Proposal non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), except that such agreement need not contain any standstill or similar provision, (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation ChangeChange in accordance with the provisions of Section 6.4.4, or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order Order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the The Company Board from disclosing shall be permitted to disclose to the Company’s stockholders 's shareholders a position position, otherwise in compliance with the terms and conditions of this Agreement, contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law. Nothing in this Agreement shall prohibit the Company Board from complying with its disclosure obligations under U.S. federal or state Law.

Notwithstanding Section 6. 4.12(a) or anything else to the contrary herein, if at any time following the execution of this Agreement and prior to the receipt of the Shareholder ApprovalAcceptance Time, (1) the Company Board, directly or indirectly through any Company Representative, may, subject to Section 6.4.3 (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) receives a bona fide, unsolicited Takeover written Acquisition Proposal in writing that the Company Board believes in good faithfaith to be bona fide, (2) such Acquisition Proposal was unsolicited and did not otherwise result from a breach of Section 6.2(a), (3) the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and (4) the Company Board determines in good faith (after consultation with outside legal counsel and an independent financial advisor, constitutes advisors) that the failure to take the actions referred to in clause (x) or (y) below would reasonably be expected to result in constitute a Superior Proposalbreach of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (iix) thereafter furnish to such third party non-public information relating with respect to the Company or any of and its Subsidiaries to the Person (including its Representatives (including, for these purposes, sources of financing)) making such Acquisition Proposal pursuant to an executed a customary confidentiality agreement that contains containing confidentiality terms substantially similar to, and standstill provisions that are no less favorable to the Company than than, those contained set forth in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”); provided, that (I) the Company shall provide Parent for informational purposes only a non-redacted copy of which each confidentiality agreement shall be the Company has executed in accordance with this Section 6.2 promptly (and in all events any event within 24 hours) after execution thereof and (II) any non-public information provided for informational purposes only to Parent)any such Person shall have been previously provided to Parent or shall be provided to Parent prior to or substantially concurrently with the time it is provided to such Person, and (iiiy) following receipt of participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal. The Company shall not provide (and on account of a Superior Proposal, make a Company Adverse Recommendation Change, or (ivshall instruct its Representatives not to provide) take any action that any court of competent jurisdiction orders non-public information determined by the Company to take (which order remains unstayedbe commercially or competitively sensitive in connection with the actions permitted by this Section 6.2(b), but except in each case referred accordance with customary “clean room” or other similar procedures designed to limit any adverse effect of the sharing of such information on the Company, which procedures shall be consistent in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation all material respects with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under practices in dealing with the Exchange Act with regard disclosures of such information to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable LawParent or its Representatives.

Notwithstanding Section 6. 4.16(a), prior the Board shall not be prohibited from furnishing information to, or entering into discussions or negotiations with, any Person that makes a bona fide written Acquisition Proposal to the receipt of Board after the Shareholder Approvaldate hereof which was not invited, initiated, solicited or encouraged by the Company BoardCompany, directly or indirectly through any Company RepresentativeSubsidiary or any Company Representative on or after the date hereof if, mayand only to the extent that, subject to Section 6.4.3 (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and an independent financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines concludes in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected inconsistent with the Board’s duties to cause the Company and its shareholders under Maryland law, (ii) a majority of the independent members of the Board to be determines in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determinesgood faith, after consultation with the Company Financial Adviser, or other financial advisers of nationally recognized reputation, and outside legal counsel, that failure such Acquisition Proposal is reasonably likely to disclose result in a Superior Acquisition Proposal (as defined below), (iii) the Company complies with all of its obligations under this Agreement, (iv) prior to or concurrently with furnishing such position would constitute information to, or entering into discussions or negotiations with, such Person, the Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions with such Person and (v) the Company enters into a violation confidentiality agreement with such Person the material terms of applicable Lawwhich are (without regard to the terms of such Acquisition Proposal) in all material respects no less favorable to the Company, and no less restrictive to the Person making such Acquisition Proposal, than those contained in the Confidentiality Agreement.

Notwithstanding Section 6. 4.13(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to the receipt of the Shareholder ApprovalAcceptance Time, (i) the Company Boardhas received a written Acquisition Proposal that did not, directly or indirectly through any Company Representativeindirectly, may, subject to result from a material breach of Section 6.4.3 6.3(a) and (iii) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes or a committee thereof determines in good faith, after consultation with outside legal counsel and an independent a financial advisor, that such Acquisition Proposal constitutes or would is reasonably be expected likely to lead to or result in a Superior Proposal, then the Company may (iiA) thereafter furnish to such third party non-public information relating with respect to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Person making such Acquisition Proposal and its Representatives and (B) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided that the Company than those contained may only take the actions described in the Confidentiality Agreement clauses (a copy of which confidentiality agreement shall be promptly (in all events within 24 hoursA) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, or (ivB) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only above if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take any such action would be, or would reasonably be expected to be, inconsistent with its fiduciary duties under applicable Law; provided, further, that (1) the Company shall not, and shall instruct its Representatives not to, disclose any material non-public information to such Person unless the Company has, or first enters into, a confidentiality agreement with such Person containing substantive terms that are not less favorable in any material respect to the Company than those contained in the Confidentiality Agreement, and does not prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or otherwise prohibit the Company from complying with its obligations under this Section 6.3, and (2) the Company shall, concurrently therewith or as promptly as reasonably practicable thereafter, and in any event within one (1) Business Day, provide or make available to Parent any material non-public information concerning the Company provided or made available to such other Person that was not previously provided or made available to Parent and Purchaser. The Company shall not, directly or indirectly, release any Person from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in any agreement to which the Company is a party; provided that if the Company Board determines in good faith, after consultation with its outside counsel, that the failure to take such action would be, or would reasonably be expected to cause the Company Board to be in breach of be, inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent , the Company Board from disclosing may waive any such standstill provision solely to the Company’s stockholders extent necessary to permit the applicable Person (if such Person has not been solicited in breach of this Section 6.3) to make, on a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under confidential basis to the Exchange Act with regard to a Takeover Company Board, an Acquisition Proposal, if conditioned upon such Person agreeing that the Company determinesshall not be prohibited from providing any information to Parent (including regarding any such Acquisition Proposal) in accordance with, after consultation with outside legal counseland otherwise complying with, that failure to disclose such position would constitute a violation of applicable Lawthis Section 6.3.