Common use of Superior Proposal Clause in Contracts

Superior Proposal. Notwithstanding Section 6.04(a), prior to the receipt of the Requisite Company Vote, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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.

Superior Proposal. Notwithstanding Section 6.04(a)8.1 and any other provision of this Agreement, the Board of Directors of Coalhunter may, subject to this Article 8, prior to the receipt approval of the Requisite Company VoteArrangement by Coalhunter Shareholders and Coalhunter Special Warrant Holders, the Company Board(i) consider and participate, directly or indirectly through indirectly, in any Representativediscussions or negotiations with, mayor provide information to, subject or permit any visit to Section 6.04(cthe facilities or properties of Coalhunter or any of its subsidiaries by, any person who has delivered a bona fide written Competing Offer that may constitute a Superior Proposal, (ii) withdraw, modify, qualify or change its recommendation to the Coalhunter Shareholders and Coalhunter Special Warrant Holders in respect of the Arrangement in response to any third party that has made a Superior Proposal, and (iii) approve or recommend to the Coalhunter Shareholders and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this AgreementCoalhunter Special Warrant Holders, or (b) prior to the date of this Agreement enter into an agreement in respect of, a Superior Proposal, but which has been materially amended and delivered after the date of this Agreement, in each case only if such Competing Offer or Superior Proposal did not resulting result from a breach of Section 6.04(a), that this Agreement by Coalhunter and if the Company Board of Directors of Coalhunter determines in good faith after consultation consulting with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed)may include written opinions or advice, but in each case referred copies of which shall have been provided to in the foregoing clauses (iCardero) through (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent is required for such directors to comply with its their 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 in this Agreement will prohibit, enjoin or otherwise complying with its disclosure obligations restrict the Board of Directors of Coalhunter in the fulfilment of their fiduciary duties under U.S. federal securities Laws 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. Coalhunter acknowledges that it is not currently engaged in any discussions or negotiations with any parties (other than Cardero) in connection with any proposal that constitutes, or may reasonably be expected to constitute, a Competing Offer or an Alternative Company Transaction and that it will not solicit from any parties a Competing Offer or Alternative Company Transaction in breach of this Agreement.

Superior Proposal. Notwithstanding Section 6.04(a), In the event that prior to the receipt of time that the Requisite Company VoteStockholder Approval has been obtained, the Company Boardreceives an unsolicited, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover fide written Alternative Transaction Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith (after consultation with its outside legal counsel and the Company its financial Advisor constitutes advisor) is, or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d)become, following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if or the Company Board determines may then take the following actions, but only if (A) the Company Board shall have determined in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure such action is required in order for the Company Board to disclose comply with its fiduciary obligations to the Company Stockholders under Applicable Law, (B) the Company first shall have given Acquiror at least three Business Days prior written notice that the Company Board has made the determination set forth in the immediately preceding subclause (A), (C) the Company shall have provided to Acquiror the information regarding such position would constitute a violation Alternative Transaction Proposal required by Section 5.2(b), and (D) neither the Company, any Company Subsidiary nor any Representative shall have breached any of applicable Lawthe provisions of Section 5.2 in any material respect with respect to such Alternative Transaction Proposal: (i) Furnish non-public information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person or Group an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and shall require such Person to agree to customary employee non-solicitation and non-hiring provisions at least as restrictive as those set forth in the Confidentiality Agreement and (B) contemporaneously with furnishing any such non-public information to such Person or Group, it furnishes such non-public information to Acquiror (to the extent such non-public information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a5.2(a), in the event that prior to the receipt of the Requisite time that Company VoteStockholder Approval has been obtained, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) receives a bona fide, unsolicited Takeover fide written Alternative Transaction Proposal in writing (a) after the date of this Agreementwhich is determined to be, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith (after consultation with its outside legal counsel and the Company its financial Advisor constitutes or advisor) is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d)become, following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company to or the Company Board may then take (which order remains unstayed)the following actions, but in each case referred to in the foregoing clauses only if (i) through (v), only if A) the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure it is required to disclose do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror at least two business days prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such position would constitute a violation Alternative Transaction Proposal and the material terms and conditions of applicable Lawsuch Alternative Transaction Proposal, and (ii) the Alternative Transaction Proposal did not result or arise from any breach of this Section 5.2. (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding Section 6.04(a), prior to Following the receipt by the Receiving Party of the Requisite Company Vote, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover fide written Acquisition Proposal in writing (a) made after the date of this AgreementAgreement (that was not solicited, assisted, initiated, knowingly encouraged or (b) prior to the date of this Agreement but which has been materially amended and delivered facilitated after the date of this Agreement, not resulting from a breach hereof in contravention of Section 6.04(a4.1(e) or Section 4.2(e), that as the Company Board determines in good faith after consultation with outside legal counsel case may be), the Receiving Party and its Representatives may: (i) contact the person making such Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Acquisition Proposal and the Company financial Advisor constitutes likelihood of its consummation so as to determine whether such Acquisition Proposal is, or is reasonably likely to result in lead to, a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal ; and (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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and board of directors of the Company Financial Advisor, that Receiving Party (the failure to take such action would be inconsistent with 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“Receiving Party Board”) promulgated under the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with its outside legal counseland financial advisors, that failure such Acquisition Proposal is, or is reasonably likely to disclose lead to, a Superior Proposal: A. furnish information with respect to the Receiving Party and its Subsidiaries to the person making such position would constitute Acquisition Proposal and its Representatives only if such person has entered into a violation confidentiality agreement that contains provisions that are not less favourable to the Receiving Party than those contained in the Confidentiality Agreement, and which also includes a standstill covenant that prohibits such person, for a period of applicable Law6 months, from acquiring, or offering to acquire, any equity securities of the Receiving Party, provided that the Receiving Party sends a copy of such confidentiality agreement to the Notified Party promptly following its execution and the Notified Party is promptly provided with a list of, and access to (to the extent not previously provided to the Notified Party) the information provided to such person; and B. engage in discussions and negotiations with the person making such Acquisition Proposal and its Representatives provided that all such information access and discussions shall cease during the Match Period (as defined below).

Superior Proposal. Notwithstanding Section 6.04(a)If, prior to the receipt of the Requisite Company Vote, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) but prior to the date receipt of this Agreement but USPB Member Approval: (i) any Seller, New Kleinco or National receives a bona fide written Acquisition Proposal, which has been materially amended was unsolicited and delivered after the date of this Agreement, not resulting from involving a breach of Section 6.04(a5.11(a), that and, in accordance with the Company provisions of Section 5.11, Sellers, New Kleinco or National, as applicable, shall promptly disclose to Buyer the material terms and conditions of the Acquisition Proposal and the identity of the Person making such Acquisition Proposal; and (ii) the Board of Directors of USPB, having received the advice of outside legal counsel and an outside financial advisor, reasonably determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes that such Acquisition Proposal is or is reasonably likely to result in lead to a Superior Proposal (after taking into account any written offer by Buyer to improve the terms of this Agreement in response to such Acquisition Proposal: ), Sellers, New Kleinco, National and their Representatives (iafter providing Buyer not less than 24 hours written notice of its intention to take the action in clauses (1) and (2) below and prior to receipt of USPB Member Approval) may: (1) furnish information (including non-public information) with respect to National and Sellers to the Person making the Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement (provided that (A) such confidentiality agreement shall not restrict Buyer’s rights to information under any provision of this Agreement and shall contain provisions that are no less restrictive with respect to the conduct of the Person to whom information is disclosed than those contained in the Confidentiality Agreement and the Indication of Interest (other than provisions relating to exclusivity), (B) USPB and National shall provide Buyer with a correct and complete copy of each such confidentiality agreement or other agreement providing access to information of National and Sellers within 24 hours of the execution thereof by both parties, and (C) all non-public information that is provided to such Person (and/or its representatives) shall concurrently also be provided, if not previously provided, to the Buyer); (2) participate in discussions or negotiations with such third party with respect to such Takeover the Person making the Acquisition Proposal (iiand its representatives) thereafter furnish regarding the Acquisition Proposal; and (3) during the period when the Board of Directors is determining pursuant to such third party non-public information relating clause (b)(ii) of this Section 5.11 if an Acquisition Proposal is or is reasonably likely to lead to a Superior Proposal and during any period while Sellers, New Kleinco, National and their Representatives are participating in discussions or negotiations regarding an Acquisition Proposal pursuant to clause (b)(2) of this Section 5.11, postpone any meeting of the USPB Members for a period of time equal to the Company or sum of the periods of time required to complete the activities contemplated by clauses (b)(ii) and (b)(2) of this Section 5.11 (the “Determination Period”); provided, that any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; such Determination Period shall not exceed ten (iii10) days, subject to Section 6.04(d)any additional extension of up to twenty (20) days, following receipt with the total Determination Period not to exceed a total of thirty (30) days, and on account such extension only upon advice of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and to USPB that such extension is necessary for the Company Financial Advisor, that the failure USPB Board to take such action would be inconsistent with fulfill its fiduciary duties under applicable LawDelaware law. Nothing contained herein USPB’s obligations to seek USPB Member Approval shall prevent be tolled for the Company Board from disclosing Determination Period. If, at the end of the Determination Period, this Agreement has not been terminated pursuant to Section 7.1(g), the Company’s stockholders time period for seeking USPB Member Approval specified in Section 5.12 shall resume and continue for the remainder of such period, without any portion of the Determination Period being considered a position contemplated by Rule 14d-9 portion of the time periods specified in Section 5.12. The Parties further acknowledge and Rule 14e-2(aagree that any activities of any Seller, New Kleinco, National, any of their Subsidiaries, investment bankers, consultants, other advisors, officers, directors, employees, agents or other representatives pursuant to this Section 5.11(b) promulgated under the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard pursuant to a Takeover ProposalSection 5.11(d) below shall not constitute, if the Company determines, after consultation with outside legal counsel, that failure or be deemed to disclose such position would constitute a violation breach of applicable Lawthis Section 5.11, or of any other provision of this Agreement.

Superior Proposal. Notwithstanding Section 6.04(a)anything to the contrary contained in this Agreement, if, at any time prior to obtaining the receipt of the Requisite Company VoteStockholder Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) receives a bona fide, unsolicited Takeover Proposal which the Special Committee concludes in writing good faith constitutes a Superior Proposal after giving effect to all of the adjustments which are offered by Parent pursuant to clause (aii) after the date of this Agreementbelow, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines may (x) effect a Change in good faith after consultation Recommendation and/or (y) terminate this Agreement (in accordance with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely Section 9.01(e)) in order to result in enter into a Superior Proposal: (i) participate in discussions or negotiations with such third party definitive agreement with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board Special Committee determines in good faith, after consultation with outside legal counsel and the Company Financial Advisorits counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Stockholders under applicable Law. Nothing contained herein ; provided, however that the Company shall prevent not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless concurrently with such termination the Company pays the Company Termination Fee payable pursuant to Section 7.05(b); provided, further, that the Company Board from disclosing may not effect a Change in Recommendation pursuant to the Company’s stockholders foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless: (i) the Company shall have provided prior written notice to Parent, at least three (3) calendar days in advance (the “Notice Period”) of its intention to effect a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act Change in Recommendation in response to such Superior Proposal or otherwise complying terminate this Agreement to enter into a definitive agreement with its disclosure obligations under U.S. federal securities Laws with regard respect to a Takeover such Superior Proposal, if which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the Person or group of Persons making such Superior Proposal), and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Proposal and other material documents; and (ii) prior to effecting such Change in Recommendation or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the Company determinesshall, after consultation and shall cause its financial and legal advisors to, during the Notice Period, negotiate with outside legal counsel, Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that failure such Takeover Proposal ceases to disclose such position would constitute a violation Superior Proposal. In the event of applicable Lawany revision to the Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of Section 6.02(e) with respect to such new written notice.

Superior Proposal. 14.1.1 Notwithstanding Section 6.04(a)anything to the contrary contained in clause 4, in respect of AkzoNobel prior to the receipt satisfaction of the Requisite Company Vote, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(cMerger Condition included in clause 3.1.1(e) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date respect of this Agreement, or (b) Axalta prior to the date satisfaction of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(aMerger Condition included in clause 3.1.1(f), in the event that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate AkzoNobel or Axalta receives an unsolicited bona fide written Alternative Proposal that did not result from a material breach of clause 13 (Exclusivity) (such Party, the “Offeree”), made by a Person who, in discussions the reasonable opinion of the AkzoNobel Boards or negotiations with such third the Axalta Board, as applicable, is a bona fide third-party with respect to such Takeover Proposal and (ii) thereafter furnish to such third party non-public information relating to the Company AkzoNobel Boards or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d)the Axalta Board, following receipt of and on account of a Superior Proposalas applicable, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that such proposal is or would reasonably be expected to result in an AkzoNobel Superior Proposal or an Axalta Superior Proposal, as applicable: (a) the Company Financial AdvisorOfferee shall be permitted to provide non-public information with respect to it and its Subsidiaries to the Person(s) making such Alternative Proposal, but only if (i) such Person(s) has entered into a confidentiality agreement with the Offeree containing material terms that are not materially less restrictive in the aggregate than the Confidentiality Agreement, and which shall not contain any exclusivity provision or other term that would restrict, in any manner, the Offeree’s ability to consummate the Merger and any other transactions as contemplated in or required to give performance to this Agreement or to comply with its disclosure obligations to the other Party pursuant to this Agreement, and (ii) prior to or contemporaneously with furnishing any such non-public information to such Person(s), it furnishes such non-public information to the other Party to the extent the other Party has not previously been provided with such information; and (b) the Offeree shall be permitted to consider such Alternative Proposal and engage in discussions or negotiations regarding such Alternative Proposal. 14.1.2 As soon as the AkzoNobel Boards or the Axalta Board, as applicable, has determined that an Alternative Proposal does not constitute an AkzoNobel Superior Proposal or an Axalta Superior Proposal, as applicable, the Offeree shall, to the extent permitted under Applicable Law, inform the other Party promptly thereof and shall confirm to the other Party that the AkzoNobel Boards or the Axalta Board, as applicable, continue to unanimously support and recommend the Merger and that the Offeree has ceased to consider such Alternative Proposal and terminated discussions and negotiations regarding such Alternative Proposal and has requested the return or destruction of all confidential information provided to the Person(s) making such Alternative Proposal, it being understood that these confirmations by the Offeree will be made public if such Alternative Proposal has also been communicated in public. 14.1.3 As soon as the AkzoNobel Boards or the Axalta Board, as applicable, has determined, at any time prior to the satisfaction of, in respect of AkzoNobel, the Merger Condition included in clause 3.1.1(e), and in respect of Axalta, the Merger Condition included in clause 3.1.1(f), that an Alternative Proposal constitutes an AkzoNobel Superior Proposal or an Axalta Superior Proposal, as applicable, and subsequently accepts such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, (i) the Offeree may terminate this Agreement and (ii) the AkzoNobel Boards or the Axalta Board, as applicable, may make an AkzoNobel Adverse Recommendation Change or an Axalta Adverse Recommendation Change, as applicable, provided that, in the case of each of clauses (i) and (ii): (a) such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, did not result from a material breach by the Offeree of its obligations under clause 13 (Exclusivity) or clause 14 (Superior Proposal); (b) the Offeree shall have provided to the other Party four (4) Business Days’ prior written notice, which shall (A) state expressly that it proposes to enter into such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, (B) include the material terms and conditions of such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable (including the consideration or exchange ratio offered therein and the identity of the Person(s) that would enter into such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable), (C) include an unredacted copy of the definitive agreement in respect thereof and all other written materials, proposals, agreements or documents related to the AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, exchanged between the Offeree, on the one hand, and the Person(s) making such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, on the other hand (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, shall require a new notice and a new two (2) Business Day period) and (D) state expressly that, subject to clause (c) below: (i) the AkzoNobel Boards have determined to effect an AkzoNobel Adverse Recommendation Change or terminate this Agreement in accordance with clause 15.1.1(f), and have determined, in good faith, after consultation with their outside legal counsel and financial advisors, that the failure to take such action effect an AkzoNobel Adverse Recommendation Change or terminate this Agreement in accordance with clause 15.1.1(f), would be inconsistent with their fiduciary duties under the laws of The Netherlands; or (ii) the Axalta Board has determined to effect an Axalta Adverse Recommendation Change or terminate this Agreement in accordance with clause 15.1.1(f), and has determined, in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to effect an Axalta Adverse Recommendation Change or terminate this Agreement in accordance with clause 15.1.1(f), would be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing laws of Bermuda; and prior to making such an AkzoNobel Adverse Recommendation Change or Axalta Adverse Recommendation Change, as applicable, or terminating this Agreement in accordance with clause 15.1.1(f), to the Company’s stockholders extent requested in writing by the other Party, engaged in good faith negotiations with the other Party during such four (4) or two (2) Business Day period, as applicable, to amend this Agreement in such a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under manner that the Exchange Act Alternative Proposal ceases to constitute an AkzoNobel Superior Proposal or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover an Axalta Superior Proposal, if as applicable; and (c) no earlier than the Company determinesend of the four (4) or two (2) Business Day period, as applicable, the AkzoNobel Boards or Axalta Board, as applicable, shall have determined, in good faith, after consultation with their outside legal counselcounsel and financial advisors, that, in light of such AkzoNobel Superior Proposal or Axalta Superior Proposal, as applicable, and taking into account any revised terms proposed by the other Party, such Alternative Proposal continues to constitute an AkzoNobel Superior Proposal or an Axalta Superior Proposal, as applicable, and that the failure to disclose such position effect an AkzoNobel Adverse Recommendation Change or Axalta Adverse Recommendation Change, as applicable, or terminate this Agreement in accordance with clause 15.1.1(f) would constitute a violation continue to be inconsistent with the fiduciary duties of applicable Lawthe AkzoNobel Boards under the laws of the Netherlands or the fiduciary duties of the Axalta Board under the laws of Bermuda, as applicable.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a6.3(a), if, prior to the receipt of the Requisite time that Company VoteStockholder Approval has been obtained, the Company Boardreceives an unsolicited, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any bona fide written Alternative Transaction Proposal from a third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreementwhich is determined to be, or (b) prior to which the date Company’s Board of this Agreement but which Directors has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith after concluded (following the receipt of advice from and consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial AdvisorAdviser of national standing) is reasonably likely to become, a Superior Proposal, the Company may then take the following actions, but only if: (i) the Company’s Board of Directors determines in good faith, after receiving advice from and consultation with its outside legal counsel, that the failure to take such action do so would be inconsistent with its fiduciary duties obligations to its stockholders under applicable Delaware Law. Nothing contained herein shall prevent ; (ii) the Company Board has given Parent prior written notice of its intention to take any of the following actions; and (iii) the Company shall have previously complied with the provisions of this Section 6.3: (i) furnish non-public information to the third party making such Alternative Transaction Proposal, provided that (A) the Company shall have first received from disclosing such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under behalf, the Exchange Act terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or otherwise complying with purported effect of restricting the Company from fulfilling its disclosure obligations under U.S. federal securities Laws this Agreement or the Confidentiality Agreement, and (B) contemporaneously with regard furnishing any such non-public information to a Takeover Proposalsuch third party, if the Company determines, after consultation furnishes such non-public information to Parent (to the extent such non-public information has not been previously so furnished); and (ii) engage in discussions or negotiations with outside legal counsel, that failure the third party with respect to disclose such position would constitute a violation of applicable Lawthe Alternative Transaction Proposal.

Superior Proposal. Notwithstanding Section 6.04(a)the prohibition on solicitation, prior to the receipt of the Requisite Company Vote, the Company Board, directly or indirectly through at any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after time following the date of this Agreement, or (b) the merger agreement and prior to the date of this Agreement but on which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith after consultation with outside legal counsel Requisite Vote (as defined below) is obtained, Asensus and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter its representatives may furnish to such third party non-public information concerning Asensus’ business, properties or assets to any person in accordance with a confidentiality agreement with terms no less favorable in the aggregate to Asensus than those contained in the confidentiality agreement and may participate in discussions and negotiations with such person concerning a Company Acquisition Proposal if, but only if, such person has submitted a bona fide proposal to Asensus relating to such Company Acquisition Proposal that the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Asensus Board determines in good faith, after consultation with ▇▇▇▇▇▇▇’ outside legal counsel and financial advisor, is or is reasonably likely to lead to a Superior Proposal. From and after the date of the merger agreement and prior to the Stockholders Meeting, Asensus will promptly (and in any event within forty-eight (48) hours) notify Parent if Asensus or any Company Financial Advisorsubsidiary or representative receives (i) any Company Acquisition Proposal or indication by any person that it is considering making a Company Acquisition Proposal, (ii) any request for non-public information relating to Asensus or any Company subsidiary other than requests for information in the ordinary course of business and unrelated to a Company Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations with respect to any Company Acquisition Proposal. Asensus will provide Parent promptly (and in any event within such forty-eight (48) hour period) with the identity of such person and a correct and complete copy of such Company Acquisition Proposal, indication, inquiry or request (or, where such Company Acquisition Proposal is not in writing, a description of the material terms and conditions of such Company Acquisition Proposal, indication, inquiry or request), including any modifications thereto. ▇▇▇▇▇▇▇ will keep Parent reasonably informed (orally and in writing) on a current basis (and in any event no later than forty-eight (48) hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence, and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, ▇▇▇▇▇▇▇ will promptly (and in any event within forty-eight (48) hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Company Acquisition Proposal and will in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. Asensus will not, and will cause each Company subsidiary not to, enter into any agreement with any person subsequent to the date of the merger agreement that would restrict the Company’s ability to provide such information to Parent and neither Asensus nor any Company subsidiary is currently party to any agreement that prohibits Asensus from providing to Parent the information described in this Section 5.2(b). Asensus (A) will not, and will cause each Company subsidiary not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any Company subsidiary is or becomes a party, and (B) will, and will cause each Company subsidiary to, use reasonable best efforts to enforce any such agreement unless the Asensus Board determines in good faith, after consultation with the Company’s outside counsel, that the failure to take such action do so would be inconsistent with its the fiduciary duties under applicable Law. Nothing contained herein shall prevent of the Company Asensus Board from disclosing to the Company’s stockholders under applicable Law, in which event Asensus may take the actions described in these clauses (A) and (B) solely to the extent necessary to permit a position contemplated by Rule 14d-9 third party to make, on a confidential basis to the Asensus Board, a Company Acquisition Proposal, conditioned upon such third party agreeing that Asensus shall not be prohibited from providing any information to Parent (including regarding any such Company Acquisition Proposal) in accordance with, and Rule 14e-2(a) promulgated under the Exchange Act or otherwise complying with, this provision, Asensus will promptly provide to Parent any non-public information concerning Asensus or any Company subsidiary provided or made available in accordance with its disclosure obligations under U.S. federal this provision which was not previously provided or made available to Parent. For purposes of the merger agreement, a “Superior Proposal” is a written Company Acquisition Proposal that did not result from or involve a material breach of this provision and that proposes an acquisition of more than fifty percent (50%) of the equity securities Laws with regard to a Takeover Proposal, if or consolidated total assets of Asensus and the Company determines, Subsidiaries on terms which the Asensus Board determines in its good faith judgment to be more favorable to the holders of the Shares than the transactions contemplated hereby (after consultation with the Company’s outside counsel and financial advisor), taking into account all the terms and conditions of such proposal and the merger agreement, which the Asensus Board has determined to be as or more reasonably likely to be completed on the terms proposed than the transactions contemplated by the merger agreement, taking into account all financial, regulatory, legal counsel, that failure to disclose and other aspects of such position would constitute a violation proposal and the terms of applicable Lawthe merger agreement.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a6.2(a), prior to in the receipt of the Requisite Company Vote, event that the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) receives after the date of this Agreement, or (b) prior to the date Acceptance Time or the earlier termination of this Agreement in accordance with its terms, an unsolicited, bona fide written Alternative Transaction Proposal, the Company may then take the following actions (but which has been materially amended and delivered only if (x) (A) the Company Board concludes in good faith, after the date of this Agreement, not resulting from a breach of Section 6.04(a)consultation with its outside legal counsel, that it is required to do so in order to comply with its fiduciary duties under applicable Law, (B) the Company Board determines in good faith that, after consultation with its outside legal counsel and the Company financial Advisor constitutes advisors that such Alternative Transaction Proposal is, or is could reasonably likely be expected to result in lead to, a Superior Proposal: , and (C) the Company has given Parent prior written notice of its intention to take any of the following actions and of the identity of the Person or group making such Alternative Transaction Proposal and (y) it shall not have breached any, and continues to comply with all, of the provisions of this Section 6.2): (i) participate furnish nonpublic information with respect to the Company and the Company Subsidiaries to the Person or group making such Alternative Transaction Proposal; provided, that (A) prior to furnishing any such nonpublic information, it receives from such Person or group an executed confidentiality agreement (a copy of which shall be provided, promptly after its execution, to Parent) containing confidentiality terms at least as restrictive as the terms contained in the Confidentiality Agreement, and which shall not contain any exclusivity provision or other term that would restrict, in any manner, the Company’s ability to consummate the Transactions or to comply with its disclosure obligations to Parent pursuant to this Agreement, and (B) substantially concurrently with furnishing any such nonpublic information to such Person or group, it furnishes such nonpublic information to Parent; and (ii) engage in discussions or negotiations with such third party Person or group with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Alternative Transaction Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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.

Superior Proposal. Notwithstanding Section 6.04(a), prior to “Superior Proposal” shall mean any bona fide written Alternative Acquisition Proposal by a third party not affiliated with the receipt Company or any Person who was a director or executive officer of the Requisite Company Voteas of May 17, 2008 to purchase all the outstanding capital stock of the Company, pursuant to a tender or exchange offer, a merger, a consolidation, a recapitalization or other business transaction, or to purchase business or businesses or assets that constitute or account for all or substantially all of the consolidated net revenues of the Company Boardand its Subsidiaries, directly taken as a whole, and that (in each case): (A) was not obtained or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) as a bona fide, unsolicited Takeover Proposal in writing (a) after the date direct or indirect result of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a)4.2 of the Agreement, or the Confidentiality Agreement, (B) is not subject to a financing (or reverse break-up fee payable in the event of failure to obtain financing) contingency that the Company Board determines is unlikely or uncertain to be satisfied, as determined in good faith by the Company’s Board of Directors, and (C) is determined in good faith by the Company’s Board of Directors, after consultation with the Company’s financial advisor and outside legal counsel and taking into account all the Company financial Advisor constitutes or is reasonably likely known terms and conditions of such Alternative Acquisition Proposal, to result in contemplate a Superior Proposaltransaction that: (ix) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action consummated would be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing more favorable to the Company’s stockholders a position than the transactions contemplated by Rule 14d-9 the Agreement (taking into account the terms of such Alternative Acquisition Proposal and Rule 14e-2(a) promulgated under any amendments to the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard terms of the Agreement proposed by Parent in a binding written offer provided by Parent to a Takeover Proposal, if the Company determinesin response to such Alternative Acquisition Proposal; and (y) is reasonably capable of being consummated by the third party on the terms of such Alternative Acquisition Proposal (taking into account the relevant financial, legal and regulatory considerations associated with such Alternative Acquisition Proposal) (it being understood that an executive officer of the Company who elects to continue employment with such Person or its Affiliates after consultation the consummation of any Alternative Acquisition Transaction shall not be deemed to be affiliated with outside legal counsel, that failure to disclose such position would constitute a violation the Company for purposes of applicable Lawthis definition).

Superior Proposal. Notwithstanding Section 6.04(a)If, prior to the receipt of the Requisite Company VoteExclusivity Period, the Company Board, directly or indirectly through SELLER receives an Acquisition Proposal from any Representative, may, subject to Section 6.04(cQualified Purchaser(s) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines of Directors of PARENT concludes in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend any or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court all of competent jurisdiction orders the Company to take (which order remains unstayedPARENT and each other SELLER may enter into an Alternative Acquisition Agreement(s), but except that the closing of any Superior Proposal evidenced by an Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in each case referred subparagraph (e) below and if such right is not exercised, BUYER’s receipt of the payment of the Termination Fee pursuant to in the foregoing clauses subparagraph (e) below and termination of this Agreement (without any cost, liability or obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) through shall promptly upon entering into an Alternative Acquisition Agreement (vand in any event within one (1) Business Day), only if make a true and complete copy thereof available for review by BUYER and BUYER’s representatives, (ii) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within five (5) business days) make available to BUYER and its representatives any information concerning SELLER, its business operations and its assets, including the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial AdvisorPremises, that has been provided by the failure Qualified Purchaser in connection with the Superior Proposal that has not previously been provided to take BUYER, and (iii) shall not enter into any confidentiality provisions restricting the provision of such action would materials to BUYER. Any materials, including a term sheet, a letter of intent or definitive agreement, given to BUYER in connection with the Superior Proposal, (A) shall be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein designated "Trade Secret" by SELLER, (B) shall prevent the Company Board from disclosing be subject to the Company’s stockholders a position contemplated trade secret protocol established by Rule 14d-9 SELLER attached hereto as Schedule 6.a., and Rule 14e-2(a(C) promulgated under shall be kept confidential by BUYER in accordance with the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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 LawConfidentiality Letter.

Superior Proposal. Notwithstanding the foregoing, nothing contained in this Section 6.04(a)7 shall prohibit the Company’s Board of Directors (the “Company Board”) from taking and disclosing to the Company’s shareholders its position with respect to any tender or exchange offer by a third party as required by law, based on the advice of the Company’s outside advisors. Notwithstanding the foregoing, prior to the receipt of the Requisite Company VoteShareholders Meeting, the Company Boardand its Representatives may furnish non-public information concerning its business, directly properties or indirectly through any Representative, may, subject to Section 6.04(c) and in response assets to any third party that has made (Person pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement and not withdrawn) may negotiate and participate in discussions, negotiations and inquiries with such Person concerning an Acquisition Proposal if, but only if, such person has, in the absence of any violation of this Section 7 by the Company, submitted a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior fide written proposal to the date of this Agreement but Company relating to any such Acquisition Proposal which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in its good faith faith, after consultation consultations with its outside legal counsel and the Company financial Advisor constitutes advisors, is or is reasonably likely expected to result in lead to a Superior Proposal: Proposal (as defined below). From and after the date hereof and prior to the Company Shareholders Meeting, the Company shall promptly (and in any event within twenty-four (24) hours) notify the Parent in the event that the Company or any of its Subsidiaries or Representatives receives (i) participate in discussions any Acquisition Proposal or negotiations with such indications that an Acquisition Proposal may be prepared by a third party with respect to such Takeover Proposal party, (ii) thereafter furnish to such third party any request for non-public information relating to the Company or any of its Subsidiaries pursuant other than requests for information that are clearly unrelated to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; a potential Acquisition Proposal, or (iii) subject to Section 6.04(dany inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent promptly (and in any event within such twenty-four (24) hour period) with the identity of such Person and a copy of such Acquisition Proposal, indication, inquiry or request (or, where such communication was not in writing, a description of the material terms and conditions of such Acquisition Proposal, indication, inquiry or request), following receipt including any modifications thereto. The Company shall keep the Parent reasonably informed on a current basis (and in any event no later than twenty-four (24) hours after the occurrence of and on account any changes, developments, discussions or negotiations, unless these can be considered de minimis) of a Superior the status of any Acquisition Proposal, make a Company Adverse Recommendation Change; indication, inquiry or request (iv) amend including the terms and conditions thereof and of any modification thereto), and any developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any oral inquiries or grant any waiver or release under any standstilldiscussions, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders unless such communication can be considered de minimis. Without limiting the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours) notify the Parent orally and in writing if it determines to take (which order remains unstayed), but provide information or to engage in each case referred discussions or negotiations concerning an Acquisition Proposal and shall in no event begin providing such information or engaging in such discussions or negotiations prior to in the foregoing clauses (i) through (v), only if providing such notice. Neither the Company Board determines nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the non-public information described in good faiththis Section 7 to the Parent, after consultation with outside legal counsel and the Company Financial Advisorshall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to restrict the Company’s stockholders ability to provide such information to the Parent. The Company (A) shall not, and shall cause its Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any of its Subsidiaries is or becomes a position contemplated by Rule 14d-9 party, and Rule 14e-2(a(B) promulgated under shall, and shall cause its Subsidiaries to, use reasonable best efforts to enforce the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard provisions of any such agreement against third parties. The Company will promptly (and in any event within twenty-four (24) hours) provide to a Takeover Proposal, if the Parent any information concerning the Company determines, after consultation with outside legal counsel, that failure or its Subsidiaries provided or made available pursuant to disclose such position would constitute a violation of applicable Lawthis Section 7 which was not previously provided or made available to the Parent.

Superior Proposal. Notwithstanding Section 6.04(a5.04(a), prior to the receipt of the Requisite Company Vote, the Company Board, on the one hand, and prior to the receipt of the Requisite Parent Vote, the Parent Board, on the other hand, directly or indirectly through any Representative, may, subject to Section 6.04(c5.04 (c): (i) and participate in response to negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines or Parent Board, as applicable, believes in good faith faith, after consultation with outside legal counsel and and, in the Company case of Parent, Parent’s financial Advisor advisor, as applicable, constitutes or is would reasonably likely be expected to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal ; (ii) thereafter furnish to such third party non-public information relating to the Company such party or any of its respective Subsidiaries (if any) pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality AgreementAgreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes to the other party); (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change or Parent Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreementas applicable; and/or (viv) take any action that any court of competent jurisdiction orders the Company such party to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (viv), only if the Company Board or Parent Board, as applicable, determines in good faith, after consultation with outside legal counsel and the Company Financial Advisorcounsel, that the failure to take such action would reasonably be inconsistent with expected to cause it to be in breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board or Parent Board, as applicable, from disclosing to the Company’s its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act, the Business Corporations Act (Alberta) or otherwise complying with its disclosure obligations under U.S. federal securities Laws National Instrument 61-101, as applicable, with regard to a Takeover Proposal, if the Company party determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a6.3(a), if, prior to the receipt of time that the Requisite Company VoteStockholder Approval has been obtained, the Company Boardreceives an unsolicited, directly or indirectly through any Representativebona fide written Alternative Transaction Proposal from a third party, mayas applicable, subject which the Company’s Board of Directors has determined to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreementbe, or (b) prior to which the date Company’s Board of this Agreement but which Directors has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or determined is reasonably likely to result become, (in either case, after consultation with its outside financial advisor and its outside legal counsel), a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter furnish to such third party non-public information relating without regard to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case matters referred to in the foregoing clauses (iC) through and (vD) of the “Superior Proposal” definition contained herein, but only to the extent not known (or capable of being known) at the time of receipt of such Alternative Transaction Proposal), only if then the Company may then take the following actions, but only if: (x) (A) the Company’s Board of Directors determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure it is required to disclose do so to comply with its fiduciary obligations to its stockholders under Delaware Law, and (B) the Company has given Parent at least twenty-four (24) hours’ prior written notice of its intention to take any of the following actions and has disclosed to Parent the identity of the Person making such position would constitute Alternative Transaction Proposal and the material terms and conditions of such Alternative Transaction Proposal; and (y) the Company shall have previously complied with the provisions of this Section 6.3: (i) furnish non-public information to the third party making such Alternative Transaction Proposal, provided that (A) the Company shall have received from such third party an executed confidentiality agreement containing (1) customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on the Company’s behalf, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (2) a violation standstill provision, the term of applicable Lawwhich is at least as long as the term contained in the Confidentiality Agreement, and the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement (except that such confidentiality agreement shall contain additional provisions that expressly permit the Company to comply with the provisions of this Section 6.3), which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and shall require such third party to agree to the same employee non-solicitation provisions, and covering the same period, as set forth in the Confidentiality Agreement, and (B) contemporaneously with furnishing any such non-public information to such third party, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously so furnished); and (ii) engage in discussions or negotiations with the third party with respect to the Alternative Transaction Proposal.

Superior Proposal. Notwithstanding Section 6.04(a), prior to (a) At any time during the receipt of the Requisite Company VoteExclusivity Period, the Company BoardBoard may furnish information to, directly or indirectly through any Representativeand enter into discussions with, may, subject to Section 6.04(c) and in response to any third party that a Person who has made an unsolicited written proposal or offer regarding an Acquisition Proposal (as defined below), and not withdrawnwith respect to which (i) a bona fidethe Company Board has determined, unsolicited Takeover Proposal in writing its good faith judgment (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(aconsultation with its financial advisor), that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor such proposal or offer constitutes or is could reasonably likely be expected to result in a Superior Proposal: Proposal (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal as defined below), (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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines has determined, in its good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, faith judgment after consultation with outside legal counsel, that that, in light of such Superior Proposal, the failure to disclose furnish such position information or to enter into such discussions would constitute result in a violation breach of its fiduciary obligations under applicable Law, (iii) the Company Board has provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three Business Days prior to taking any such action, and (iv) the Company Board has obtained from such Person an executed confidentiality agreement containing confidentiality provisions no less favourable to the Company than those contained in the Confidentiality Agreement, provided that such confidentiality agreement shall not preclude such Person from making the Acquisition Proposal. Upon the receipt of a Superior Proposal, the Company shall be entitled to withdraw the Recommendation, and terminate this Agreement and the Transactions immediately prior to entering into a binding agreement relating to the Superior Proposal. (b) The Company agrees that in addition to the obligations of the Company set forth in paragraph (a) of this Section 6.02, immediately upon receipt thereof, the Company shall advise Parent in writing of any request for information or any Acquisition Proposal, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal and the terms and conditions of such request for information, Acquisition Proposal, inquiry, discussions or negotiations and the Company shall promptly provide to Parent copies of any written materials received by the Company in connection with any of the foregoing, and the identity of the Person or group making any such request for information, Acquisition Proposal or inquiry or with whom any discussions or negotiations may be taking place. The Company agrees that it shall keep Parent informed of the status, terms and material details (including amendments or proposed amendments) of any such request for information, Acquisition Proposal or inquiry and keep Parent informed as to the details of any information requested of or provided by the Company and as to the status and material terms of all substantive discussions or negotiations with respect to any such request, Acquisition Proposal or inquiry. The Company agrees that it shall simultaneously provide to Parent any non-public information concerning the Company that may be provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to Parent. (c) The Company shall as promptly as practicable reaffirm the Recommendation of the Transaction by press release after any written Acquisition Proposal (which is determined not to be a Superior Proposal) is publicly announced or made.

Superior Proposal. Notwithstanding Section 6.04(a)the prohibition on solicitation, prior to the receipt of the Requisite Company Vote, the Company Board, directly or indirectly through at any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after time following the date of this Agreement, or (b) the merger agreement and prior to the date on which the stockholders of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith after consultation with outside legal counsel adopt the merger agreement, Asensus and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter its representatives may furnish to such third party non-public information concerning Asensus’ business, properties or assets to any person in accordance with a confidentiality agreement with terms no less favorable in the aggregate to Asensus than those contained in the confidentiality agreement entered into between the Company and ▇▇▇▇ ▇▇▇▇▇ on February 10, 2022, and may participate in discussions and negotiations with such person concerning a Company Acquisition Proposal if, but only if, such person has submitted a bona fide proposal to Asensus relating to such Company Acquisition Proposal that the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Asensus Board determines in good faith, after consultation with ▇▇▇▇▇▇▇’ outside legal counsel and financial advisor, is or is reasonably likely to lead to a Superior Proposal. From and after the date of the merger agreement and prior to the special meeting, Asensus will promptly (and in any event within forty-eight (48) hours) notify Parent if Asensus or any Company Financial Advisorsubsidiary or representative receives (i) any Company Acquisition Proposal or indication by any person that it is considering making a Company Acquisition Proposal, (ii) any request for non-public information relating to Asensus or any Company subsidiary other than requests for information in the ordinary course of business and unrelated to a Company Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations with respect to any Company Acquisition Proposal. Asensus will provide Parent promptly (and in any event within such forty-eight (48) hour period) with the identity of such person and a correct and complete copy of such Company Acquisition Proposal, indication, inquiry or request (or, where such Company Acquisition Proposal is not in writing, a description of the material terms and conditions of such Company Acquisition Proposal, indication, inquiry or request), including any modifications thereto. ▇▇▇▇▇▇▇ will keep Parent reasonably informed (orally and in writing) on a current basis (and in any event no later than forty-eight (48) hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Company Acquisition Proposal, indication, inquiry or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, correspondence, and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, ▇▇▇▇▇▇▇ will promptly (and in any event within forty-eight (48) hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Company Acquisition Proposal and will in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice. Asensus will not, and will cause each Company subsidiary not to, enter into any agreement with any person subsequent to the date of the merger agreement that would restrict the Company’s ability to provide such information to Parent and neither Asensus nor any Company subsidiary is currently party to any agreement that prohibits Asensus from providing to Parent the information described above. Asensus (A) will not, and will cause each Company subsidiary not to, terminate, waive, amend or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which it or any Company subsidiary is or becomes a party, and (B) will, and will cause each Company subsidiary to, use reasonable best efforts to enforce any such agreement unless the Asensus Board determines in good faith, after consultation with the Company’s outside counsel, that the failure to take such action do so would be inconsistent with its the fiduciary duties under applicable Law. Nothing contained herein shall prevent of the Company Asensus Board from disclosing to the Company’s stockholders under applicable law, in which event Asensus may take the actions described in these clauses (A) and (B) solely to the extent necessary to permit a position contemplated by Rule 14d-9 third party to make, on a confidential basis to the Asensus Board, a Company Acquisition Proposal, conditioned upon such third party agreeing that Asensus shall not be prohibited from providing any information to Parent (including regarding any such Company Acquisition Proposal) in accordance with, and Rule 14e-2(a) promulgated under the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal with, this provision, Asensus will promptly provide to Parent any non-public information concerning Asensus or any Company subsidiary provided or made available which was not previously provided or made available to Parent. For purposes of the merger agreement, a “Superior Proposal” is a written Company Acquisition Proposal that did not result from or involve a material breach of this provision and that proposes an acquisition of more than fifty percent (50%) of the equity securities Laws with regard to a Takeover Proposal, if or consolidated total assets of Asensus and the Company determines, subsidiaries on terms which the Asensus Board determines in its good faith judgment to be more favorable to the holders of the shares of common stock than the transactions contemplated hereby (after consultation with the Company’s outside counsel and financial advisor), taking into account all the terms and conditions of such proposal and the merger agreement, which the Asensus Board has determined to be as or more reasonably likely to be completed on the terms proposed than the transactions contemplated by the merger agreement, taking into account all financial, regulatory, legal counsel, that failure to disclose and other aspects of such position would constitute a violation proposal and the terms of applicable Lawthe merger agreement.

Superior Proposal. Notwithstanding Section 6.04(a), prior anything to the receipt of the Requisite Company Vote, the Company Board, directly contrary set forth in Section 5.2(a) or indirectly through in any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date other provision of this Agreement, or (b) prior to in the date event that the Company receives, after the execution and delivery of this Agreement but and prior to obtaining the Company Shareholder Approval, a bona fide written Alternative Transaction Proposal which has been materially amended and delivered after the date of this Agreement, did not resulting result from a breach of this Section 6.04(a)5.2 (other than, that individually or in the aggregate, insignificant breaches) and which the Board of Directors of the Company Board determines in good faith (after consultation with its outside legal counsel and the Company an independent financial Advisor constitutes advisor of nationally recognized reputation) to be, or is to be reasonably likely expected to result in lead to, a Superior Proposal: , the Company may then take the following actions: (i) participate Furnish any nonpublic information with respect to the Company and its Subsidiaries to the Person or group of Persons (and their respective advisors and other representatives) making such Alternative Transaction Proposal; and (ii) Engage in discussions or negotiations with such third party Person or group of Persons (and their respective advisors and other representatives) with respect to such Takeover Proposal Alternative Transaction Proposal; provided, that prior to taking any action referred to in clause (i) or (ii) thereafter furnish above, the Company (x) receives from such Person or group of Persons an executed confidentiality agreement containing confidentiality terms at least as restrictive to such third party nonPerson or group of Persons (and their respective advisors and other representatives) as the terms contained in the Confidentiality and Non-public information relating Disclosure Agreement, dated as of July 27, 2017, between the Company and Parent, as amended by the Exclusivity Agreement, dated as of October 30, 2017, between the Company and Parent and the First Amendment to the Confidentiality and Non-Disclosure Agreement, dated November 29, 2017 (the “Confidentiality Agreement”), and (y) gives notice to Parent in accordance with Section 5.2(c). Any breach by any director, officer, employee or Representative of the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iiiof this Section 5.2(b) subject to Section 6.04(d), following receipt of and on account of shall be deemed a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders breach hereof by the Company to take (which order remains unstayed), but in each case referred to in if the foregoing clauses Company does not (i) through (v), only if give prompt notice of any such breach to Parent after the Company Board obtains Knowledge of such breach and (ii) take such action reasonably requested by Parent to seek to cure such breach within three (3) Business Days of the date on which the Company receives such request from Parent; provided, that, if Parent reasonably determines in good faithfaith that such breach is not curable, after consultation with outside legal counsel and then such breach shall be deemed a breach by the Company, regardless of whether the Company Financial Advisor, that the failure has taken any action to take seek to cure such action would be inconsistent with its fiduciary duties under applicable Lawbreach. 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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 Table of applicable Law.Contents

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a5.7(a), if, prior to the receipt of time that the Requisite Company VoteSeller Stockholder Approval has been obtained, the Company BoardSeller receives an unsolicited, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any bona fide written Alternative Transaction Proposal from a third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreementwhich is determined to be, or (b) prior to the date which Seller’s Board of this Agreement but which Directors has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith after concluded (following the receipt of advice from and consultation with its outside legal counsel and the Company financial Seller Financial Advisor constitutes or is of national standing) would reasonably be likely to result in become, a Superior Proposal, Seller may then take the following actions, but only if: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter furnish to such third party non-public information relating to the Company or any Seller’s Board of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board Directors determines in good faith, after receiving advice from and consultation with its outside legal counsel and the Company Financial Advisorcounsel, that the failure to take such action do so would be inconsistent with its fiduciary duties obligations to its stockholders under applicable Delaware Law. Nothing contained herein ; (ii) Seller has, on one occasion with respect to each Alternative Transaction Proposal (and all amendments and modifications relating thereto), given Buyer prior written notice of its intention to take any of the following actions; and (iii) Seller shall prevent have previously complied with the Company Board from disclosing provisions of this Section 5.7(c) with respect to such Alternative Transaction Proposal: (i) furnish non-public information to the Companythird party making such Alternative Transaction Proposal, provided that (A) Seller shall have first received from such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on Seller’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under behalf, the Exchange Act terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or otherwise complying with purported effect of restricting Seller from fulfilling its disclosure obligations under U.S. federal securities Laws this Agreement or the Confidentiality Agreement, and (B) contemporaneously with regard furnishing any such non-public information to a Takeover such third party, Seller furnishes such non-public information to Buyer (to the extent such non-public information has not been previously so furnished); and (ii) engage in discussions or negotiations with the third party with respect to the Alternative Transaction Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.

Superior Proposal. Notwithstanding (a) Except as otherwise provided in this Section 6.04(a), 10 or with the prior to the receipt consent of the Requisite Company VoteInitial Consenting Noteholders, the Company Boardshall not, directly or indirectly through indirectly, commence, consummate an agreement to commence, make, seek, solicit, assist, initiate, encourage, facilitate, propose, file, support, or initiate any Representativediscussions or negotiations regarding any alternative offer, mayrestructuring, subject to sale of assets, merger, workout, plan or arrangement or plan of reorganization other than the Transaction. (b) Notwithstanding Section 6.04(c10(a) and in response to or any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date other provision of this Agreement, or (b) prior in the event the Company receives a bona fide unsolicited proposal, the Company is permitted to negotiate and enter into a transaction in respect of any such proposal if, following receipt of advice from outside legal and financial advisors, the date Board believes in good faith, in the exercise of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a)its fiduciary duties, that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is such proposal could reasonably likely be expected to result in a transaction more favourable to the Company and its stakeholders than the Transaction (a “Superior Proposal”); provided that if the Company receives a Superior Proposal, it shall disclose to the Initial Consenting Noteholder Advisors within three (3) Business Days of the receipt of such Superior Proposal: (i) participate the receipt thereof, (ii) the identity of the Person or group of Persons involved, and (iii) the material terms of such Superior Proposal and copies of all material documents received in respect of such Superior Proposal from or on behalf of such Person, in each case subject to any confidentiality restrictions in respect of such Superior Proposal and provided that the Initial Consenting Noteholder Advisors and the Initial Consenting Noteholders shall agree to keep such information confidential. The Company shall keep the Initial Consenting Noteholder Advisors promptly informed of the status of developments, discussions or and negotiations with such third party with respect to such Takeover Superior Proposal, in each case subject to any confidentiality restrictions in respect of such Superior Proposal and provided that the Initial Consenting Noteholder Advisors shall agree to keep such information confidential The Company shall use its commercially reasonable efforts to prevent any applicable confidentiality agreement from restricting the conveyance of the foregoing information to the Initial Consenting Noteholders. (iic) thereafter furnish to such third party If at any time following the execution of this Agreement, the Company receives a request for material non-public information relating information, or to enter into discussions, from a Person that proposes to the Company or any an unsolicited bona fide proposal that did not result from a breach of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; this Agreement (iiiand which has not been withdrawn) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with in good faith following receipt of advice from outside legal counseland financial advisors, that failure such proposal constitutes or could reasonably be expected to disclose constitute or lead to a Superior Proposal (disregarding, for the purposes of such position would constitute determination, any due diligence access condition to which such proposal is subject), then the Company may: (i) provide the Person making such proposal with, or access to, information regarding the Company, but only to the extent that the Initial Consenting Noteholder Advisors have previously been, or are concurrently, provided with access to the same information; and/or (ii) enter into, participate in, facilitate and maintain discussions or negotiations with, or otherwise cooperate with or assist the Person making such proposal with respect to such proposal, if, and only if: (iii) the Company has entered into a violation confidentiality agreement on market terms that will preserve the confidentiality of applicable Lawinformation provided by the Company if the alternative proposal does not proceed; and (iv) the Company has been, and continues to be, in compliance in all material respects with this Section 10.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a6.1(a), in the event that, prior to the receipt of the Requisite Company Votetime that Required Stockholder Approval has been obtained, the Company Boardreceives an unsolicited, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any bona fide written Alternative Transaction Proposal from a third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines is determined in good faith after consultation with outside legal counsel and by the Company financial Advisor constitutes or is reasonably likely Company’s board of directors to result in be a Superior Proposal, the Company may then take the following actions, but only if: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter furnish to such third party non-public information relating to the Company or any Company’s board of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board directors determines in good faith, after receiving advice from and consultation with its outside legal counsel and the Company Financial Advisorcounsel, that the failure to take such action do so would be inconsistent with a breach of its fiduciary duties obligations to its stockholders under applicable Law. Nothing contained herein shall prevent the DGCL, (ii) the Company Board has given Parent prior written notice of its intention to take any of the following actions, and (iii) the Company shall have previously complied in all material respects with the provisions of this Section 6.2: (i) furnish non-public information to the third party making such Alternative Transaction Proposal, provided that (A) the Company shall have received from disclosing such third party an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such third party on the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under behalf, the Exchange Act terms of which are at least as restrictive as the terms contained in the Reciprocal Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or otherwise complying with purported effect of restricting the Company from fulfilling its disclosure obligations under U.S. federal securities Laws this Agreement or the Reciprocal Confidentiality Agreement, and (B) contemporaneously with regard furnishing any such non-public information to a Takeover Proposalsuch third party, if the Company determines, after consultation furnishes such non-public information to Parent (to the extent such non-public information has not been previously so furnished); and (ii) engage in discussions or negotiations with outside legal counsel, that failure the third party with respect to disclose such position would constitute a violation of applicable Lawthe Alternative Transaction Proposal.

Superior Proposal. Notwithstanding Section 6.04(a)anything to the contrary contained in this Agreement, at any time prior to the receipt of the Requisite Company VoteShareholder Approval, the Company Board, directly Board (or indirectly through any Representative, duly authorized committee thereof) may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) the receipt of a bona fide, unsolicited Takeover written Competing Proposal in writing (a) received after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, hereof that did not resulting result from a breach of Section 6.04(a)‎Section 5.03(a) and is not withdrawn, that make a Change of Company Recommendation (and, if so desired by the Company Board determines (or any duly authorized committee thereof) terminate this Agreement in good faith after consultation accordance with outside legal counsel and ‎Section 7.01(d) in order to cause the Company financial Advisor constitutes or is reasonably likely to result in enter into a Superior binding and definitive written Alternative Acquisition Agreement with respect to a Competing Proposal: ), only if: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel and the Company Financial Advisorcounsel, that the (A) failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein Law and (B) such Competing Proposal constitutes a Superior Proposal; (ii) the Company provides Parent written notice at least four (4) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action (a “Notice of Change of Recommendation”), which notice shall prevent identify the person making such Competing Proposal and include a copy of all definitive agreements to effect such Superior Proposal to which the Company or any Company Subsidiary would be a party and any financing commitments to which the person making such Competing Proposal would be a party (subject to customary redactions to debt financing commitments) (it being agreed that neither the delivery of the Notice of Change of Recommendation by the Company nor the public disclosure thereof shall constitute a Change of Company Recommendation); (iii) if requested by Parent, prior to effecting such Change of Company Recommendation, the Company shall, and shall direct its applicable Representatives to, negotiate with Parent in good faith during the four (4) Business Days commencing on the date of delivery of the Notice of Change of Recommendation regarding adjustments in the terms and conditions of this Agreement proposed by Parent in writing; (iv) no earlier than the end of the four (4) Business Day period beginning after the delivery of the Notice of Change of Recommendation, the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a(or any duly authorized committee thereof) promulgated under the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determinesdetermines in good faith, after consultation with its outside financial advisors and outside legal counselcounsel and after considering any proposed amendments to the terms and conditions of this Agreement proposed by Parent in writing during such four (4) Business Day period, that (A) failure to disclose take such position action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a violation Superior Proposal; provided, that any change to the financial terms (including any change to the amount or form of applicable Lawconsideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days).

Superior Proposal. Notwithstanding Section 6.04(a), prior anything to the receipt of the Requisite Company Vote, the Company Board, directly contrary set forth in Section 5.2(a) or indirectly through in any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date other provision of this Agreement, or (b) prior to in the date event that the Company receives, after the execution and delivery of this Agreement but and prior to obtaining the Company Shareholder Approval, a bona fide written Alternative Transaction Proposal which has been materially amended and delivered after the date of this Agreement, did not resulting result from a breach of this Section 6.04(a)5.2 (other than, that individually or in the aggregate, insignificant breaches) and which the Board of Directors of the Company Board determines in good faith (after consultation with its outside legal counsel and the Company an independent financial Advisor constitutes advisor of nationally recognized reputation) to be, or is to be reasonably likely expected to result in lead to, a Superior Proposal: , the Company may then take the following actions: (i) participate Furnish any nonpublic information with respect to the Company and its Subsidiaries to the Person or group of Persons (and their respective advisors and other representatives) making such Alternative Transaction Proposal; and (ii) Engage in discussions or negotiations with such third party Person or group of Persons (and their respective advisors and other representatives) with respect to such Takeover Proposal Alternative Transaction Proposal; provided, that prior to taking any action referred to in clause (i) or (ii) thereafter furnish above, the Company (x) receives from such Person or group of Persons an executed confidentiality agreement containing confidentiality terms at least as restrictive to such third party nonPerson or group of Persons (and their respective advisors and other representatives) as the terms contained in the Confidentiality and Non-public information relating Disclosure Agreement, dated as of July 27, 2017, between the Company and Parent, as amended by the Exclusivity Agreement, dated as of October 30, 2017, between the Company and Parent and the First Amendment to the Confidentiality and Non-Disclosure Agreement, dated November 29, 2017 (the “Confidentiality Agreement”), and (y) gives notice to Parent in accordance with Section 5.2(c). Any breach by any director, officer, employee or Representative of the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iiiof this Section 5.2(b) subject to Section 6.04(d), following receipt of and on account of shall be deemed a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders breach hereof by the Company to take (which order remains unstayed), but in each case referred to in if the foregoing clauses Company does not (i) through (v), only if give prompt notice of any such breach to Parent after the Company Board obtains Knowledge of such breach and (ii) take such action reasonably requested by Parent to seek to cure such breach within three (3) Business Days of the date on which the Company receives such request from Parent; provided, that, if Parent reasonably determines in good faithfaith that such breach is not curable, after consultation with outside legal counsel and then such breach shall be deemed a breach by the Company, regardless of whether the Company Financial Advisor, that the failure has taken any action to take seek to cure such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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 Lawbreach.

Superior Proposal. Notwithstanding Section 6.04(a)If, prior to the receipt of the Requisite Company VoteExclusivity Period, the Company Board, directly or indirectly through SELLER receives an Acquisition Proposal from any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), Qualified Purchaser that the Company Board determines of Directors of PARENT concludes in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement, except that such Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in subparagraph (ive) amend below and if such right is not exercised, BUYER’s receipt of the payment of the Termination Fee pursuant to subparagraph (E) below, and termination of this Agreement (without any cost, liability or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or obligation whatsoever to BUYER) as contemplated by subparagraph (ve) 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 below. SELLER (i) through shall promptly upon entering into an Alternative Acquisition Agreement (vand in any event within one (1) Business Day), only if make a true and complete copy thereof available for review by BUYER and BUYER’s representatives, (ii) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within five (5) business days) make available to BUYER and its representatives any information concerning SELLER, its business operations and its assets, including the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial AdvisorPremises, that has been provided by the failure Qualified Purchaser in connection with the Alternative Acquisition Agreement that has not previously been provided to take BUYER, and (iii) shall not enter into any confidentiality provisions restricting the provision of such action would materials to BUYER; provided that, the Alternative Acquisition Agreement, and any other materials given to BUYER in connection with the Alternative Acquisition Agreement, shall be inconsistent designated "Trade Secret" by SELLER and shall be kept confidential by BUYER in accordance with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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 LawConfidentiality Letter.

Superior Proposal. Notwithstanding If the Company receives an unsolicited Acquisition Proposal that did not result from a material breach of this Section 6.04(a)5.3 and that the Company Board has determined in good faith (after consultation with its financial advisors (in the case of financial matters) and outside legal counsel) constitutes a Superior Proposal, prior then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Superior Proposal or (B) cause the Company to terminate this Agreement pursuant to Section ‎8.1(j) in order to substantially simultaneously enter into a definitive agreement with respect to such Superior Proposal; provided, that, notwithstanding anything to the receipt contrary herein, neither the Company nor any of the Requisite Company Voteits Subsidiaries shall enter into any Alternative Acquisition Agreement unless this Agreement has been validly terminated in accordance with Section ‎8.1(j); provided, further, the Company Board, directly or indirectly through Board shall not take any Representative, may, subject to Section 6.04(caction described in the foregoing clauses (A) and in response to any third party that has made (and not withdrawnB) a bona fide, unsolicited Takeover Proposal in writing unless: (a1) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith (after consultation with its financial advisors (in the case of financial matters) and outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (icounsel) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action do so would be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein Law (which determination together with the Determination Notice described below, to the extent expressly permitted by this Section ‎5.3(d)(ii), in and of itself shall prevent not, unless a Company Board Recommendation Change has otherwise occurred, constitute a Company Board Recommendation Change or otherwise, unless a material breach of this Section 5.3 has occurred and subject to the terms of Section 8.1(e), constitute a basis for Parent to terminate this Agreement pursuant to Section 8.1(e); provided that any public statement or disclosure made in connection with the foregoing includes an express reaffirmation of the Company Board from disclosing Recommendation, without any amendment, withdrawal, alteration, modification or qualification thereof) (it being further understood and agreed that the foregoing shall not limit any rights or remedies of Parent under this Agreement upon the occurrence of a Company Board Recommendation Change or, subject to the Company’s stockholders terms of Section 8.1(e), material breach of this Section 5.3, including any Company Board Recommendation Change that occurs following the conclusion of the Notice Period); and (2) the Company has provided prior written notice (the “Determination Notice”) to Parent at least four (4) Business Days in advance (it being understood that any material revision, amendment, update or supplement to the terms or conditions of such Superior Proposal shall be deemed to constitute a position contemplated by Rule 14d-9 new Superior Proposal and Rule 14e-2(ashall require a new notice but with an additional minimum of three (3) promulgated under Business Days (instead of at least four (4) Business Days) notice and negotiation period from the Exchange Act date of such notice) (any such notice period, as extended, the “Notice Period”) to the effect that the Company Board intends to take the actions described in clauses (A) or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover (B) of this Section ‎5.3(d)(ii), including the identity of the Person or Group making such Acquisition Proposal, if the material terms thereof and copies of all material relevant agreements relating to such Acquisition Proposal, and during such Notice Period, the Company determines, shall and shall cause its Representatives to negotiate in good faith (to the extent Parent desires to negotiate) any proposal by Parent to amend the terms and conditions of this Agreement such that such Acquisition Proposal would cease to constitute a Superior Proposal; and (ii) at the end of such Notice Period (as extended) the Company Board again determines in good faith (after consultation with its financial advisors (in the case of financial matters) and outside legal counsel, ) that failure such Acquisition Proposal continues to disclose such position would constitute a violation of applicable LawSuperior Proposal and again makes the determination under Section ‎5.3(d)(ii)(1) (in each case after in good faith taking into account the proposals for amendments in a form that is binding to Parent subject only to execution by the Company proposed by Parent).

Superior Proposal. Notwithstanding Section 6.04(a), prior to the receipt of the Requisite Company VoteOffer Closing, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and Section 6.04(d): (i) participate in response to negotiations or discussions with any third party that that, after the date hereof, has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date that did not result from a material breach of this Agreement, or (b) prior to the date of this Agreement but Section 6.04 and which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines believes in good faith faith, after consultation with its financial advisor and outside legal counsel and the Company financial Advisor counsel, constitutes or is would reasonably likely be expected to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality AgreementAgreement (provided that the Company shall substantially concurrently provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person to the extent access to such information was not previously provided to Parent); and/or (iii) subject to Section 6.04(d), following receipt of and on account of a Superior ProposalProposal that did not result from a material breach of this Section 6.04, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), Change but in each case referred to in the foregoing clauses (i) through (viii), only if (A) the provisions of Section 6.04(c) and Section 6.04(d) are complied with and (B) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel and the Company Financial Advisorcounsel, that the failure to take such action would reasonably be expected to cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s 's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with its financial advisors and outside legal counsel, that failure to disclose such position would constitute a violation of reasonably be expected to cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law; provided, that neither the Company Board or any committee thereof shall make a Company Adverse Recommendation Change except as expressly permitted by Section 6.04(d).

Superior Proposal. Notwithstanding Section 6.04(a)anything to the contrary contained in this Agreement, if, at any time from and after the No-Shop Period Start Date and prior to the receipt of the Requisite Company VoteOffer Closing, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.04(c) and in response to any third party that has made (and not withdrawn) receives a bona fide, unsolicited fide written Takeover Proposal in writing (a) after the date of this Agreement, that is not withdrawn from any Person that did not result from or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from involve a breach of Section 6.04(a6.03(b), that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) 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 (v), only if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel counsel, (i) that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and the Company Financial Advisor, that the (ii) failure to take such action the actions set forth in clauses (A) and (B) below would be inconsistent with its the Company Board’s fiduciary duties under applicable Law, then the Company and its Representatives may, in response to such Takeover Proposal, (A) furnish, pursuant and subject to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person that has made such written Takeover Proposal and its Representatives; provided, that the Company shall, (x) provide Parent with a copy of such executed Applicable Confidentiality Agreement promptly (and in no event later than 24 hours) after execution and (y) prior to or substantially concurrently with the delivery to such Person, provide to Parent any information or data concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its directors, officers, employees, investment bankers, attorneys, accountants and other advisors or Representatives, whether in writing or orally, unless such information has been previously provided to Parent, in which case the Company shall promptly (and in no event later than 24 hours) provide written notification to Parent of the information and data so provided (unless such information was not previously provided to Parent or Merger Sub at the request of Parent or Merger Sub or to comply with applicable Law); and (B) engage in, facilitate or otherwise participate in discussions or negotiations with the Person making such Takeover Proposal and its Representatives regarding such Takeover Proposal. Nothing contained herein The Company Board shall prevent promptly (and in any event within 24 hours) notify Parent in writing if the Company Board from disclosing to makes the determinations set forth in this Section 6.03(c). Nothing in this Section 6.03(c) shall limit the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under rights prior to the Exchange Act or otherwise complying Cut-Off Time with its disclosure obligations under U.S. federal securities Laws with regard respect 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 Lawan Excluded Party.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 6.04(a5.2(a), in the event that prior to the receipt of the Requisite time that Company VoteStockholder Approval has been obtained, the Company Boardreceives an unsolicited, directly or indirectly through any Representative, may, subject bona fide written Alternative Transaction Proposal which is determined to Section 6.04(c) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreementbe, or (b) prior to which the date of this Agreement but which has been materially amended Special Committee and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines in good faith (after consultation with its outside legal counsel and the Company its financial Advisor constitutes or advisor) is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d)become, following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend the Company, the Special Committee or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company to Board may then take (which order remains unstayed)the following actions, but in each case referred to in the foregoing clauses only if (i) through (v), only if A) each of the Special Committee and the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to take such action would be inconsistent with 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 or otherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure it is required to disclose do so to comply with its fiduciary obligations to the Company Stockholders under Applicable Law, and (B) the Company has given Acquiror prior written notice of its intention to take any of the following actions and of the identity of the Person or Group making such position would constitute a violation Alternative Transaction Proposal and the material terms and conditions of applicable Lawsuch Alternative Transaction Proposal, and (ii) it shall not have breached any of the provisions of this Section 5.2: (i) Furnish nonpublic information to the Person or Group making such Alternative Transaction Proposal, provided that (A) the Company first shall have received from such Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting the Company from fulfilling its obligations under this Agreement or the Confidentiality Agreement and shall require such Person to agree to customary employee non-solicitation provisions covering at least 12 months from execution of such confidentiality agreement and (B) contemporaneously with furnishing any such nonpublic information to such Person or Group, it furnishes such nonpublic information to Acquiror (to the extent such nonpublic information has not been previously so furnished to Acquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. Notwithstanding Section 6.04(a)If, prior to the receipt of the Requisite Company VoteClosing Date, the Company Board, directly or indirectly through SELLER receives an Acquisition Proposal from any Representative, may, subject to Section 6.04(cQualified Purchaser(s) and in response to any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing (a) after the date of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not resulting from a breach of Section 6.04(a), that the Company Board determines of Directors of PARENT concludes in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to result in a Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover 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 constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend any or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court all of competent jurisdiction orders the Company to take (which order remains unstayedPARENT and each other SELLER may enter into an Alternative Acquisition Agreement(s), but except that the closing of any Superior Proposal evidenced by an Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in each case referred subparagraph (e) below and if such right is not exercised, BUYER’s receipt of the payment of the Termination Fee pursuant to in the foregoing clauses subparagraph (e) below and termination of this Agreement (without any cost, liability or obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) through shall promptly upon entering into an Alternative Acquisition Agreement (vand in any event within one (1) Business Day), only if make a true and complete copy thereof available for review by BUYER and BUYER’s representatives, (ii) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within five (5) business days) make available to BUYER and its representatives any information concerning SELLER, its business operations and its assets, including the Company Board determines in good faith, after consultation with outside legal counsel and the Company Financial AdvisorPremises, that has been provided by the failure Qualified Purchaser in connection with the Superior Proposal that has not previously been provided to take BUYER, and (iii) shall not enter into any confidentiality provisions restricting the provision of such action would materials to BUYER. Any materials, including a term sheet, a letter of intent or definitive agreement, given to BUYER in connection with the Superior Proposal, (A) shall be inconsistent with its fiduciary duties under applicable Law. Nothing contained herein designated "Trade Secret" by SELLER, (B) shall prevent the Company Board from disclosing be subject to the Company’s stockholders a position contemplated trade secret protocol established by Rule 14d-9 SELLER attached hereto as Schedule 6.a., and Rule 14e-2(a(C) promulgated under shall be kept confidential by BUYER in accordance with the Exchange Act or otherwise complying with its disclosure obligations under U.S. federal securities Laws 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 LawConfidentiality Letter.