Common use of Superior Proposal Clause in Contracts

Superior Proposal. By the Company at any time prior to the date the Company stockholder approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by the Company and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to Purchaser.

Superior Proposal. By If, after the Company at any time date of this Agreement, but prior to the date the Company stockholder approval has been obtainedreceipt of USPB Member Approval: (i) any Seller, New Kleinco or National receives a bona fide written Acquisition Proposal, which was unsolicited and not involving a breach of Section 5.11(a), and, in order accordance with the provisions of Section 5.11, Sellers, New Kleinco or National, as applicable, shall promptly disclose to concurrently enter into an Acquisition Proposal that has been received by the Company and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth Buyer the material terms and conditions of any such Superior Proposal, including the amount per share Acquisition Proposal and the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value identity of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that Person making such Acquisition Proposal would no longer constitute a Superior Proposal Proposal; and (ii) the Company Board has considered such adjustments in of Directors of USPB, having received the terms advice of outside legal counsel and conditions of this Agreement resulting from such negotiations and has concluded an outside financial advisor, reasonably determines in good faith, based upon consultation with its financial and legal advisers, faith that such Acquisition Proposal remains is or is reasonably likely to lead to a Superior Proposal even (after giving effect 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 (after 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 adjustments proposed 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 Purchaser both parties, and (C) all non-public information that is provided further 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 the Person making the Acquisition Proposal (and its representatives) regarding the Acquisition Proposal; and (3) during the period when the Board of Directors is determining pursuant to 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 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 such Determination Period shall not exceed ten (10) days, subject to any additional extension of up to twenty (20) days, with the total Determination Period not to exceed a total of thirty (30) days, and such extension only upon advice of outside legal counsel to USPB that such termination extension is necessary for the USPB Board to fulfill its fiduciary duties under Delaware law. USPB’s obligations to seek USPB Member Approval shall be tolled for the Determination Period. If, at the end of the Determination Period, this Agreement has not been terminated pursuant to Section 7.1(g), the 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 portion of the time periods specified in Section 5.12. The Parties further acknowledge and agree 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) or pursuant to Section 5.11(d) below shall not constitute, or be effective until the Company has paid the Break-up Fee and Expense Payment deemed to Purchaserconstitute a breach of this Section 5.11, or of any other provision of this Agreement.

Superior Proposal. By Notwithstanding anything to the Company at any time contrary contained in Section 5.2(a), in the event that prior to the date the time that Company stockholder approval Stockholder Approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by the Company and receives a bona fide written Alternative Transaction Proposal which is determined to be, or which the Company Board determines in compliance good faith (after consultation with Sections 6.6(aits outside legal counsel and its financial advisor) and (b) and that is reasonably likely to become, a Superior Proposal, the Company or the Company Board concludes in good faithmay then take the following actions, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(gbut only if (i) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what A) the Company Board determines in good faith, after consultation with its independent financial advisoroutside legal counsel, that it is required to be do so to comply with its fiduciary obligations to the fair value of the non-cash consideration)Company Stockholders under Applicable Law, and only if (iB) during such five-calendar day period, the Company has caused given Acquiror at least two business days prior written notice of its financial intention to take any of the following actions and legal advisors to negotiate with Purchaser in good faith to make of the identity of the Person or Group making such adjustments in Alternative Transaction Proposal and the material terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal Alternative Transaction Proposal, and (ii) the Company Board has considered such adjustments in the terms and conditions Alternative Transaction Proposal did not result or arise from any breach of this Agreement resulting 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 negotiations 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 has concluded in good faith(B) contemporaneously with furnishing any such nonpublic information to such Person or Group, based upon consultation with its financial and legal advisers, that it furnishes such Acquisition Proposal remains a Superior Proposal even after giving effect nonpublic information to Acquiror (to the adjustments proposed by Purchaser and provided further that extent such termination shall nonpublic information has not be effective until the Company has paid the Break-up Fee and Expense Payment been previously so furnished to PurchaserAcquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. By Notwithstanding Section 8.1 and any other provision of this Agreement, the Company at any time Board of Directors of Coalhunter may, subject to this Article 8, prior to the date approval of the Company stockholder approval has been obtainedArrangement by Coalhunter Shareholders and Coalhunter Special Warrant Holders, (i) consider and participate, directly or indirectly, in order any discussions or negotiations with, or provide information to, or permit any visit to concurrently the 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 a Superior Proposal, and (iii) approve or recommend to the Coalhunter Shareholders and Coalhunter Special Warrant Holders, or enter into an Acquisition Proposal that has been received by the Company and the Company Board agreement in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faithrespect of, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that but in each case only if such Competing Offer or Superior Proposal did not result from a breach of this Agreement may be terminated by Coalhunter and if the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision Board of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions Directors of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board Coalhunter determines in good faithfaith after consulting with outside counsel (which may include written opinions or advice, after consultation copies of which shall have been provided to Cardero) that such action is required for such directors to comply with its independent financial advisortheir fiduciary duties under applicable Law. Nothing in this Agreement will prohibit, to be enjoin or otherwise restrict the fair value Board of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments Directors of Coalhunter in the terms fulfilment of their fiduciary duties under 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 conditions that it will not solicit from any parties a Competing Offer or Alternative Company Transaction in breach of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserAgreement.

Superior Proposal. By Notwithstanding anything to the Company at any time contrary contained in Section 5.7(a), if, prior to the date time that the Company stockholder approval Seller Stockholder Approval has been obtained, in order Seller receives an unsolicited, bona fide written Alternative Transaction Proposal from a third party which is determined to concurrently enter into an Acquisition Proposal that be, or which Seller’s Board of Directors has been received by the Company and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in faith concluded (following the receipt of advice from and consultation with its financial outside legal counsel and legal advisorsthe Seller Financial Advisor of national standing) would reasonably be likely to become, that such Acquisition Proposal is a Superior Proposal; provided, howeverSeller may then take the following actions, that this Agreement may be terminated by the Company pursuant to this Section 8.1(gbut only if: (i) only after the fifth calendar day following the CompanySeller’s provision Board of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board Directors determines in good faith, after receiving advice from and consultation with its independent financial advisoroutside legal counsel, that the failure to do so would be the fair value inconsistent with its fiduciary obligations to its stockholders under Delaware Law; (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 non-cash consideration), following actions; and only if (iii) Seller shall have previously complied with the provisions of this Section 5.7(c) with respect to such Alternative Transaction Proposal: (i) during furnish non-public information to the third party making such fiveAlternative 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-calendar day periodpublic written and oral information furnished to such third party on Seller’s behalf, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments terms of which are at least as restrictive as the terms contained in the terms and conditions Confidentiality Agreement, which confidentiality agreement shall not include any provision having the actual or purported effect of restricting Seller from fulfilling its obligations under this Agreement or the Confidentiality Agreement, and (B) contemporaneously with furnishing any such that non-public information to such Acquisition Proposal would no longer constitute a Superior Proposal and 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 Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation third party with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect respect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserAlternative Transaction Proposal.

Superior Proposal. By Notwithstanding anything to the contrary set forth in Section 5.2(a) or in any other provision of this Agreement, in the event that the Company at any time receives, after the execution and delivery of this Agreement and prior to the date obtaining the Company stockholder approval has been obtainedShareholder Approval, a bona fide written Alternative Transaction Proposal which did not result from a breach of this Section 5.2 (other than, individually or in order the aggregate, insignificant breaches) and which the Board of Directors of the Company determines (after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputation) to concurrently enter into an Acquisition Proposal that has been received by be, or to be reasonably expected to lead to, a Superior Proposal, the Company may then take the following actions: (i) Furnish any nonpublic information with respect to the Company and its Subsidiaries to the Company Board Person or group of Persons (and their respective advisors and other representatives) making such Alternative Transaction Proposal; and (ii) Engage in compliance discussions or negotiations with Sections 6.6(asuch Person or group of Persons (and their respective advisors and other representatives) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that respect to such Acquisition Proposal is a Superior Alternative Transaction Proposal; provided, howeverthat prior to taking any action referred to in clause (i) or (ii) above, that the Company (x) receives from such Person or group of Persons an executed confidentiality agreement containing confidentiality terms at least as restrictive to such Person or group of Persons (and their respective advisors and other representatives) as the terms contained in the Confidentiality and Non-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 of this Agreement may Section 5.2(b) shall be terminated deemed a breach hereof by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that if the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions does not (i) give prompt notice of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what breach to Parent after the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value obtains Knowledge of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal 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 Board has considered receives such adjustments in the terms and conditions of this Agreement resulting request from such negotiations and has concluded Parent; provided, that, if Parent reasonably determines in good faith, based upon consultation with its financial and legal advisers, faith that such Acquisition Proposal remains breach is not curable, then such breach shall be deemed a Superior Proposal even after giving effect to breach by the adjustments proposed by Purchaser and provided further that such termination shall not be effective until Company, regardless of whether the Company has paid the Break-up Fee and Expense Payment taken any action to Purchaser.seek to cure such breach. Table of Contents

Superior Proposal. By the Company at any time Notwithstanding Section 5.04(a), prior to the date receipt of the Requisite Company Vote, the Company stockholder approval has been obtainedBoard, 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 5.04 (c): (i) participate in order to concurrently enter into an Acquisition Proposal negotiations or discussions with any third party that has been received by the Company made (and the Company Board not withdrawn) a bona fide, unsolicited Takeover Proposal in compliance with Sections 6.6(a) and (b) and writing that the Company Board concludes or Parent Board, as applicable, believes in good faith, in after consultation with its outside legal counsel and, in the case of Parent, Parent’s financial and legal advisorsadvisor, that such Acquisition Proposal is as applicable, constitutes or would reasonably be expected to result in a Superior Proposal; provided, however, that this Agreement may be terminated by the Company (ii) thereafter furnish to such third party non-public information relating to such party or any of its respective Subsidiaries (if any) pursuant to this Section 8.1(gan executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes to the other party); (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change or Parent Adverse Recommendation Change, as applicable; and/or (iv) take any action that any court of competent jurisdiction orders such party to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that if the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposalor Parent Board, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board as applicable, determines in good faith, after consultation with its independent financial advisoroutside legal counsel, that the failure to take such action would reasonably be expected to cause it to be the fair value in breach of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board has considered such adjustments in or Parent Board, as applicable, from disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faithExchange Act, based upon the Business Corporations Act (Alberta) or National Instrument 61-101, as applicable, with regard to a Takeover Proposal, if the party determines, after consultation with its financial and outside legal adviserscounsel, that failure to disclose such Acquisition Proposal remains position would constitute a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to Purchaserviolation of applicable Law.

Superior Proposal. By Notwithstanding anything to the Company at any time contrary contained in Section 6.3(a), if, prior to the date time that the Company stockholder approval Stockholder Approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by the Company receives an unsolicited, bona fide written Alternative Transaction Proposal from a third party, as applicable, which the Company’s Board of Directors has determined to be, or which the Company’s Board of Directors has in good faith determined is reasonably likely to become, (in either case, after consultation with its outside financial advisor and its outside legal counsel), a Superior Proposal (without regard to the Company Board matters referred to in compliance with Sections 6.6(aclauses (C) and (bD) and that 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), then the Company Board concludes in good faithmay then take the following actions, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(gbut only if: (x) only after the fifth calendar day following (A) the Company’s provision Board of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board Directors determines in good faith, after consultation with its independent financial advisoroutside legal counsel, that it is required to be the fair value of the non-cash consideration)do so to comply with its fiduciary obligations to its stockholders under Delaware Law, and only if (iB) during such five-calendar day period, the Company has caused given Parent at least twenty-four (24) hours’ prior written notice of its financial intention to take any of the following actions and legal advisors has disclosed to negotiate with Purchaser in good faith to make Parent the identity of the Person making such adjustments in 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 standstill provision, the term of which 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 that 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 Acquisition Proposal would no longer constitute a Superior Proposal and 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 Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation third party with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect respect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserAlternative Transaction Proposal.

Superior Proposal. By Notwithstanding anything to the Company at any time contrary contained in Section 6.1(a), in the event that, prior to the date the Company stockholder approval time that Required Stockholder Approval has been obtained, the Company receives an unsolicited, bona fide written Alternative Transaction Proposal from a third party which is determined in order to concurrently enter into an Acquisition Proposal that has been received good faith by the Company and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is Company’s board of directors to be a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(gmay then take the following actions, but only if: (i) only after the fifth calendar day following the Company’s provision board of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board directors determines in good faith, after receiving advice from and consultation with its independent financial advisoroutside legal counsel, that the failure to do so would be a breach of its fiduciary obligations to its stockholders under the fair value of the non-cash consideration)DGCL, and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered 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 adjustments Alternative Transaction Proposal, provided that (A) the Company shall have 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 the Company’s behalf, the terms of which are at least as restrictive as the terms contained in the terms and conditions Reciprocal 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 resulting from or the Reciprocal Confidentiality Agreement, and (B) contemporaneously with furnishing any such negotiations and has concluded in good faithnon-public information to such third party, based upon consultation with its financial and legal advisers, that the Company furnishes such Acquisition Proposal remains a Superior Proposal even after giving effect non-public information to Parent (to the adjustments proposed by Purchaser and provided further that extent such termination shall non-public information has not be effective until been previously so furnished); and (ii) engage in discussions or negotiations with the Company has paid third party with respect to the Break-up Fee and Expense Payment to PurchaserAlternative Transaction Proposal.

Superior Proposal. By Notwithstanding anything to the Company contrary contained in this Agreement, at any time prior to the date receipt of the Company stockholder approval has been obtainedShareholder Approval, the Company Board (or any duly authorized committee thereof) may, in response to the receipt of a bona fide, written Competing Proposal received after the date hereof that did not result from a breach of ‎Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation (and, if so desired by the Company Board (or any duly authorized committee thereof) terminate this Agreement in accordance with ‎Section 7.01(d) in order to concurrently cause the Company to enter into an a binding and definitive written Alternative Acquisition Proposal that has been received by the Company and Agreement with respect to a Competing Proposal), only if: (i) the Company Board in compliance with Sections 6.6(a(or any duly authorized committee thereof) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent outside financial advisoradvisors and outside legal counsel, that (A) failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal; (ii) the fair value Company provides Parent written notice at least four (4) Business Days prior to effecting a Change of Company Recommendation of the non-cash considerationCompany Board’s intention to take such action (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal and only 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 (i) during requested by Parent, prior to effecting such five-calendar day periodChange of Company Recommendation, the Company has caused shall, and shall direct its financial and legal advisors to applicable Representatives to, negotiate with Purchaser Parent in good faith to make such 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 such that such Acquisition Proposal would proposed by Parent in writing; (iv) no longer constitute a Superior Proposal and earlier than the end of the four (ii4) Business Day period beginning after the delivery of the Notice of Change of Recommendation, the Company Board has considered such adjustments (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any proposed amendments to the terms and conditions of this Agreement resulting from proposed by Parent in writing during such negotiations and has concluded in good faithfour (4) Business Day period, based upon consultation that (A) failure to take such action would be reasonably likely to be inconsistent with its financial fiduciary duties under applicable Law and legal advisers(B) such Competing Proposal continues to constitute a Superior Proposal; provided, that such Acquisition Proposal remains a Superior Proposal even after giving effect any change to the adjustments financial terms (including any change to the amount or form of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Purchaser Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and provided further that an additional two (2) Business Day period from the date of such termination notice during which the terms of clause (i) through (iv) shall not be effective until apply mutatis mutandis (other than the Company has paid the Break-up Fee and Expense Payment to Purchasernumber of days).

Superior Proposal. By (a) Except as otherwise provided in this Section 10 or with the prior consent of the Initial Consenting Noteholders, the Company at shall not, directly or indirectly, commence, consummate an agreement to commence, make, seek, solicit, assist, initiate, encourage, facilitate, propose, file, support, or initiate any time prior to discussions or negotiations regarding any alternative offer, restructuring, sale of assets, merger, workout, plan or arrangement or plan of reorganization other than the date the Company stockholder approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by the Company and the Company Board in compliance with Sections 6.6(a) and Transaction. (b) and that Notwithstanding Section 10(a) or any other provision of this Agreement, 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 Board concludes believes in good faith, in consultation the exercise of its fiduciary duties, that such proposal could reasonably 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) 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 and negotiations with respect to such 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. (c) If at any time following the execution of this Agreement, the Company receives a request for material non-public information, or to enter into discussions, from a Person that proposes to the Company an unsolicited bona fide proposal that did not result from a breach of this Agreement (and which has not been withdrawn) and the Company determines, in good faith following receipt of advice from outside legal and financial and legal advisors, that such Acquisition Proposal is proposal constitutes or could reasonably be expected to constitute or lead to a Superior ProposalProposal (disregarding, for the purposes of such 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; providedand/or (ii) enter into, howeverparticipate 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 confidentiality agreement on market terms that this Agreement may be terminated will preserve the confidentiality of information provided by the Company pursuant to this Section 8.1(gif the alternative proposal does not proceed; and (iv) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial been, and legal advisors continues to negotiate be, in compliance in all material respects with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserSection 10.

Superior Proposal. By the Company at any time If, prior to the date Closing Date, SELLER receives an Acquisition Proposal from any Qualified Purchaser(s) that the Company stockholder approval has been obtainedBoard of Directors of PARENT concludes in good faith constitutes a Superior Proposal, in order to concurrently any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement(s), 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 subparagraph (e) 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 obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within one (1) Business Day), 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 Premises, that has been provided by the Qualified Purchaser in connection with the Superior Proposal that has not previously been received by the Company and the Company Board in compliance with Sections 6.6(a) provided to BUYER, and (biii) and that shall not enter into any confidentiality provisions restricting the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice such materials to Purchaser advising Purchaser that BUYER. Any materials, including a term sheet, a letter of intent or definitive agreement, given to BUYER in connection with the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including (A) shall be designated "Trade Secret" by SELLER, (B) shall be subject to the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value of the non-cash consideration)trade secret protocol established by SELLER attached hereto as Schedule 6.a., and only if (iC) during such five-calendar day period, shall be kept confidential by BUYER in accordance with the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserConfidentiality Letter.

Superior Proposal. By Notwithstanding anything to the Company contrary contained in this Agreement, if, at any time from and after the No-Shop Period Start Date and prior to the date Offer Closing, the Company stockholder approval has been obtained, in order to concurrently enter into an Acquisition receives a bona fide written Takeover Proposal that has been received by the Company is not withdrawn from any Person that did not result from or involve a breach of Section 6.03(b), and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what if the Company Board determines in good faith, after consultation with its independent financial advisoradvisors and outside legal counsel, to be the fair value of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Takeover Proposal constitutes or would no longer constitute reasonably be expected to lead to a Superior Proposal Proposal, and (ii) failure to take the actions set forth in clauses (A) and (B) below would be inconsistent with 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. The Company Board shall promptly (and in any event within 24 hours) notify Parent in writing if the Company Board has considered such adjustments makes the determinations set forth in this Section 6.03(c). Nothing in this Section 6.03(c) shall limit the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect Company’s rights prior to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the BreakCut-up Fee and Expense Payment Off Time with respect to Purchaseran Excluded Party.

Superior Proposal. By Notwithstanding anything to the Company at any time contrary contained in Section 5.2(a), in the event that prior to the date the time that Company stockholder approval Stockholder Approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by the Company receives an unsolicited, bona fide written Alternative Transaction Proposal which is determined to be, or which the Special Committee and the Company Board determines in compliance good faith (after consultation with Sections 6.6(aits outside legal counsel and its financial advisor) and (b) and that is reasonably likely to become, a Superior Proposal, the Company, the Special Committee or the Company Board concludes in good faithmay then take the following actions, in consultation with its financial but only if (i) (A) each of the Special Committee and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisoroutside legal counsel, that it is required to be do so to comply with its fiduciary obligations to the fair value of the non-cash consideration)Company Stockholders under Applicable Law, and only if (iB) during such five-calendar day period, the Company has caused given Acquiror prior written notice of its financial intention to take any of the following actions and legal advisors to negotiate with Purchaser in good faith to make of the identity of the Person or Group making such adjustments in Alternative Transaction Proposal and the material terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal 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 Board has considered first shall have received from such adjustments in Person an executed confidentiality agreement containing terms at least as restrictive with regard to Company’s confidential information as the terms and conditions 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 resulting 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 negotiations confidentiality agreement and has concluded in good faith(B) contemporaneously with furnishing any such nonpublic information to such Person or Group, based upon consultation with its financial and legal advisers, that it furnishes such Acquisition Proposal remains a Superior Proposal even after giving effect nonpublic information to Acquiror (to the adjustments proposed by Purchaser and provided further that extent such termination shall nonpublic information has not be effective until the Company has paid the Break-up Fee and Expense Payment been previously so furnished to PurchaserAcquiror); and (ii) Engage in discussions or negotiations with such Person or Group with respect to such Alternative Transaction Proposal.

Superior Proposal. By “Superior Proposal” shall mean any bona fide written Alternative Acquisition Proposal by a third party not affiliated with the Company at or any time prior to the date Person who was a director or executive officer of the Company stockholder approval has been obtainedas of May 17, in order 2008 to concurrently enter into an Acquisition Proposal 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 has been received by constitute or account for all or substantially all of the consolidated net revenues of the Company and the Company Board in compliance with Sections 6.6(a) and (b) its Subsidiaries, taken as a whole, and that (in each case): (A) was not obtained or made as a direct or indirect result of a breach of Section 4.2 of the Company Board concludes 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 is unlikely or uncertain to be satisfied, as determined in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated faith by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision Board of written notice to Purchaser advising Purchaser that Directors, and (C) is determined in good faith by the Company Company’s Board is prepared to accept a Superior Proposal of Directors, after consultation with the Company’s financial advisor and setting forth outside legal counsel and taking into account all the material known terms and conditions of any such Superior Alternative Acquisition Proposal, including the amount per share to contemplate a transaction that: (x) if consummated would be more favorable to the Company’s stockholders will receive per share than the transactions contemplated by the Agreement (taking into account the terms of Company Common Stock (valuing such Alternative Acquisition Proposal and any non-cash consideration at what amendments to the terms of the Agreement proposed by Parent in a binding written offer provided by Parent to the Company Board determines in good faithresponse 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, after consultation legal and regulatory considerations associated with its independent financial advisor, to be the fair value such Alternative Acquisition Proposal) (it being understood that an executive officer of the non-cash consideration), and only if (i) during Company who elects to continue employment with such five-calendar day period, Person or its Affiliates after the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions consummation of this Agreement such that such any Alternative Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination Transaction shall not be effective until deemed to be affiliated with the Company has paid the Break-up Fee and Expense Payment to Purchaserfor purposes of this definition).

Superior Proposal. By the Company at any time If, prior to the date Exclusivity Period, SELLER receives an Acquisition Proposal from any Qualified Purchaser(s) that the Company stockholder approval has been obtainedBoard of Directors of PARENT concludes in good faith constitutes a Superior Proposal, in order to concurrently any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement(s), 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 subparagraph (e) 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 obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within one (1) Business Day), 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 Premises, that has been provided by the Qualified Purchaser in connection with the Superior Proposal that has not previously been received by the Company and the Company Board in compliance with Sections 6.6(a) provided to BUYER, and (biii) and that shall not enter into any confidentiality provisions restricting the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice such materials to Purchaser advising Purchaser that BUYER. Any materials, including a term sheet, a letter of intent or definitive agreement, given to BUYER in connection with the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including (A) shall be designated "Trade Secret" by SELLER, (B) shall be subject to the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value of the non-cash consideration)trade secret protocol established by SELLER attached hereto as Schedule 6.a., and only if (iC) during such five-calendar day period, shall be kept confidential by BUYER in accordance with the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserConfidentiality Letter.

Superior Proposal. By 14.1.1 Notwithstanding anything to the Company at any time contrary contained in clause 4, in respect of AkzoNobel prior to the date satisfaction of the Company stockholder approval has been obtainedMerger Condition included in clause 3.1.1(e) and in respect of Axalta prior to the satisfaction of the Merger Condition included in clause 3.1.1(f), in order to concurrently enter into the event that (i) AkzoNobel or Axalta receives an Acquisition unsolicited bona fide written Alternative Proposal that has been received did not result from a material breach of clause 13 (Exclusivity) (such Party, the “Offeree”), made by a Person who, in the Company and reasonable opinion of the Company Board in compliance with Sections 6.6(a) AkzoNobel Boards or the Axalta Board, as applicable, is a bona fide third-party and (bii) and that the Company Board concludes in good faithAkzoNobel Boards or the Axalta Board, in consultation with its financial and legal advisorsas applicable, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent outside legal counsel and financial advisoradvisors, 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 Offeree shall be the fair value of the permitted to provide non-cash consideration)public information with respect to it and its Subsidiaries to the Person(s) making such Alternative Proposal, and but only if (i) during such five-calendar day periodPerson(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 Company has caused its financial Offeree’s ability to consummate the Merger and legal advisors any other transactions as contemplated in or required to negotiate with Purchaser in good faith give performance to make such adjustments in the terms and conditions of 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 such Acquisition an Alternative Proposal would no longer does not constitute a 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 Company Board has considered such adjustments 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 resulting from such negotiations in accordance with clause 15.1.1(f), and has concluded have determined, in good faith, based upon after consultation with their outside legal counsel and financial advisors, that the failure to 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 and legal advisersadvisors, 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 the laws of Bermuda; and prior to making such Acquisition 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 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 manner that the Alternative Proposal remains a ceases to constitute an AkzoNobel Superior Proposal even or an Axalta Superior Proposal, as applicable; and (c) no earlier than the end 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 giving effect to the adjustments consultation with their outside legal counsel 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 Purchaser the other Party, such Alternative Proposal continues to constitute an AkzoNobel Superior Proposal or an Axalta Superior Proposal, as applicable, and provided further that such termination shall not the failure to 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 continue to be effective until inconsistent with the Company has paid fiduciary duties of the Break-up Fee and Expense Payment to PurchaserAkzoNobel Boards under the laws of the Netherlands or the fiduciary duties of the Axalta Board under the laws of Bermuda, as applicable.

Superior Proposal. By Notwithstanding the foregoing, nothing contained in this Section 7 shall prohibit the Company’s Board of Directors (the “Company at Board”) from taking and disclosing to the Company’s shareholders its position with respect to any time 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 date Company Shareholders Meeting, the Company stockholder approval has been obtainedand its Representatives may furnish non-public information concerning its business, properties or assets to any Person pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in order to concurrently enter into the Confidentiality Agreement and may negotiate and participate in discussions, negotiations and inquiries with such Person concerning an Acquisition Proposal that has been received if, but only if, such person has, in the absence of any violation of this Section 7 by the Company, submitted a bona fide written proposal to the Company and relating to any such Acquisition Proposal which the Company Board determines in compliance its good faith, after consultations with Sections 6.6(aits outside legal counsel and financial advisors, is or is reasonably expected to lead to a Superior 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) and (bhours) and notify the Parent in the event that the Company Board concludes or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indications that an Acquisition Proposal may be prepared by a third party, (ii) any request for non-public information relating to the Company or any of its Subsidiaries other than requests for information that are clearly unrelated to a potential Acquisition Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company shall provide Parent promptly (and in good faith, in consultation any event within such twenty-four (24) hour period) with its financial the identity of such Person and legal advisors, that a copy of such Acquisition Proposal is Proposal, indication, inquiry or request (or, where such communication was not in writing, a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision description of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Acquisition Proposal, indication, inquiry or request), including any modifications thereto. The Company shall keep the amount per share Parent reasonably informed on a current basis (and in any event no later than twenty-four (24) hours after the Company’s stockholders will receive per share occurrence of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faithchanges, after consultation with its independent financial advisordevelopments, to discussions or negotiations, unless these can be the fair value considered de minimis) of the non-cash consideration)status of any Acquisition Proposal, and only if indication, inquiry or request (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in 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 discussions, 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 provide information or to engage in 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 providing such notice. Neither the Company nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the non-public information described in this Section 7 to the Parent, and the Company shall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide such that such Acquisition Proposal would no longer constitute 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 Superior Proposal party, and (iiB) shall, and shall cause its Subsidiaries to, use reasonable best efforts to enforce the provisions of any such agreement against third parties. The Company will promptly (and in any event within twenty-four (24) hours) provide to the Parent any information concerning the Company Board has considered such adjustments in the terms and conditions of or its Subsidiaries provided or made available pursuant to this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect Section 7 which was not previously provided or made available to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserParent.

Superior Proposal. By If the Company at any time prior to the date the Company stockholder approval has been obtained, in order to concurrently enter into receives an unsolicited Acquisition Proposal that has been received by the Company and the Company Board in compliance with Sections 6.6(a) and (b) did not result from a material breach of this Section 5.3 and that the Company Board concludes has determined in good faith, in faith (after consultation with its financial advisors (in the case of financial matters) and outside legal advisorscounsel) constitutes a Superior Proposal, that then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Acquisition Superior Proposal is 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, howeverthat, that notwithstanding anything to the contrary herein, neither the Company nor any of its Subsidiaries shall enter into any Alternative Acquisition Agreement unless this Agreement may be has been validly terminated by the Company pursuant to this in accordance with Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that ‎8.1(j); provided, further, the Company Board is prepared to accept a Superior Proposal shall not take any action described in the foregoing clauses (A) and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what B) unless: (1) the Company Board determines in good faith, faith (after consultation with its independent financial advisoradvisors (in the case of financial matters) and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law (which determination together with the Determination Notice described below, to be the fair value extent expressly permitted by this Section ‎5.3(d)(ii), in and of itself shall 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 non-cash considerationCompany Board 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 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 new Superior Proposal and only if shall require a new notice but with an additional minimum of three (i3) Business Days (instead of at least four (4) Business Days) notice and negotiation period from the 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 (B) of this Section ‎5.3(d)(ii), including the identity of the Person or Group making such Acquisition Proposal, the material terms thereof and copies of all material relevant agreements relating to such Acquisition Proposal, and during such five-calendar day periodNotice Period, the Company has caused shall and shall cause its financial and legal advisors Representatives to negotiate with Purchaser in good faith (to make such adjustments in 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 no longer 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 such Acquisition Proposal continues to constitute a Superior Proposal and again makes the determination under Section ‎5.3(d)(ii)(1) (ii) 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 Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserParent).

Superior Proposal. By Notwithstanding the Company prohibition on solicitation, at any time following the date of the merger agreement and prior to the date on which the stockholders of the Company stockholder approval adopt the merger agreement, Asensus and its representatives may furnish 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 been obtained, in order submitted a bona fide proposal to concurrently enter into an Asensus relating to such Company Acquisition Proposal that has been received by the Company and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Asensus Board determines in good faith, after consultation with its independent ▇▇▇▇▇▇▇’ outside counsel and financial advisor, is or is reasonably likely to be lead to a Superior Proposal. From and after the fair value 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 subsidiary 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-cash considerationpublic 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 only 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 (iA) during 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 fiveagreement unless the Asensus Board determines in good faith, after consultation with the Company’s outside counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Asensus Board 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 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 otherwise complying with, this provision, Asensus will promptly provide to Parent any non-calendar day periodpublic 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 or consolidated total assets of Asensus and the Company has caused subsidiaries on terms which the Asensus Board determines in its financial and legal advisors to negotiate with Purchaser in good faith judgment to make such adjustments in 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 this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal proposal and (ii) the Company merger agreement, which the Asensus Board has considered such adjustments in 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 and conditions other aspects of this Agreement resulting from such negotiations proposal and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until terms of the Company has paid the Break-up Fee and Expense Payment to Purchasermerger agreement.

Superior Proposal. By Notwithstanding anything to the contrary set forth in Section 5.2(a) or in any other provision of this Agreement, in the event that the Company at any time receives, after the execution and delivery of this Agreement and prior to the date obtaining the Company stockholder approval has been obtainedShareholder Approval, a bona fide written Alternative Transaction Proposal which did not result from a breach of this Section 5.2 (other than, individually or in order the aggregate, insignificant breaches) and which the Board of Directors of the Company determines (after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputation) to concurrently enter into an Acquisition Proposal that has been received by be, or to be reasonably expected to lead to, a Superior Proposal, the Company may then take the following actions: (i) Furnish any nonpublic information with respect to the Company and its Subsidiaries to the Company Board Person or group of Persons (and their respective advisors and other representatives) making such Alternative Transaction Proposal; and (ii) Engage in compliance discussions or negotiations with Sections 6.6(asuch Person or group of Persons (and their respective advisors and other representatives) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that respect to such Acquisition Proposal is a Superior Alternative Transaction Proposal; provided, howeverthat prior to taking any action referred to in clause (i) or (ii) above, that the Company (x) receives from such Person or group of Persons an executed confidentiality agreement containing confidentiality terms at least as restrictive to such Person or group of Persons (and their respective advisors and other representatives) as the terms contained in the Confidentiality and Non-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 of this Agreement may Section 5.2(b) shall be terminated deemed a breach hereof by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that if the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions does not (i) give prompt notice of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what breach to Parent after the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value obtains Knowledge of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal 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 Board has considered receives such adjustments in the terms and conditions of this Agreement resulting request from such negotiations and has concluded Parent; provided, that, if Parent reasonably determines in good faith, based upon consultation with its financial and legal advisers, faith that such Acquisition Proposal remains breach is not curable, then such breach shall be deemed a Superior Proposal even after giving effect to breach by the adjustments proposed by Purchaser and provided further that such termination shall not be effective until Company, regardless of whether the Company has paid the Break-up Fee and Expense Payment taken any action to Purchaserseek to cure such breach.

Superior Proposal. By the Company at any time If, prior to the date Exclusivity Period, SELLER receives an Acquisition Proposal from any Qualified Purchaser that the Company stockholder approval has been obtainedBoard of Directors of PARENT concludes in good faith constitutes a Superior Proposal, in order to concurrently any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Proposal Agreement, except that such Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in subparagraph (e) 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 obligation whatsoever to BUYER) as contemplated by subparagraph (e) below. SELLER (i) shall promptly upon entering into an Alternative Acquisition Agreement (and in any event within one (1) Business Day), 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 Premises, that has been received provided by the Company and Qualified Purchaser in connection with the Company Board in compliance with Sections 6.6(a) Alternative Acquisition Agreement that has not previously been provided to BUYER, and (biii) and that shall not enter into any confidentiality provisions restricting the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice such materials to Purchaser advising Purchaser that BUYER; provided that, the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value of the non-cash consideration)Alternative Acquisition Agreement, and only if (i) during such five-calendar day periodany other materials given to BUYER in connection with the Alternative Acquisition Agreement, shall be designated "Trade Secret" by SELLER and shall be kept confidential by BUYER in accordance with the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserConfidentiality Letter.

Superior Proposal. By (a) At any time during the Exclusivity Period, the Company at any time prior to the date the Company stockholder approval has been obtainedBoard may furnish information to, in order to concurrently and enter into discussions with, a Person who has made an unsolicited written proposal or offer regarding an Acquisition Proposal that has been received by the Company (as defined below), and with respect to which (i) the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faithhas determined, in its good faith judgment (after consultation with its financial and legal advisorsadvisor), that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may proposal or offer constitutes or could reasonably be terminated by the Company pursuant expected to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept result in a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faith, after consultation with its independent financial advisor, to be the fair value of the non-cash considerationas defined below), and only if (i) during such five-calendar day period, the Company has caused its financial and legal advisors to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and (ii) the Company Board has considered determined, in its good faith judgment after consultation with outside legal counsel, that, in light of such adjustments Superior Proposal, the failure to furnish such information or to enter into such discussions would result in a 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 this Agreement resulting from such request for information, Acquisition Proposal, inquiry, discussions or negotiations and has concluded the Company shall promptly provide to Parent copies of any written materials received by the Company in good faithconnection with any of the foregoing, based upon consultation with its financial and legal advisersthe identity of the Person or group making any such request for information, that such Acquisition Proposal remains 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 even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserProposal) is publicly announced or made.

Superior Proposal. By Notwithstanding anything to the Company at any time contrary contained in Section 6.3(a), if, prior to the date the time that Company stockholder approval Stockholder Approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by the Company receives an unsolicited, bona fide written Alternative Transaction Proposal from a third party which is determined to be, or which the Company’s Board of Directors has in good faith concluded (following the receipt of advice from and consultation with its outside legal counsel and the Company Board in compliance with Sections 6.6(aFinancial Adviser of national standing) and (b) and that the Company Board concludes in good faithis reasonably likely to become, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(gmay then take the following actions, but only if: (i) only after the fifth calendar day following the Company’s provision Board of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board Directors determines in good faith, after receiving advice from and consultation with its independent financial advisoroutside legal counsel, that the failure to do so would be the fair value of the non-cash consideration), and only if (i) during such five-calendar day period, the Company has caused inconsistent with its financial and legal advisors fiduciary obligations to negotiate with Purchaser in good faith to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and its stockholders under Delaware Law; (ii) the Company Board has considered 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 adjustments Alternative Transaction Proposal, provided that (A) the Company 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 the Company’s behalf, the terms of which are at least as restrictive as the terms contained in the terms and conditions 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 resulting from or the Confidentiality Agreement, and (B) contemporaneously with furnishing any such negotiations and has concluded in good faithnon-public information to such third party, based upon consultation with its financial and legal advisers, that the Company furnishes such Acquisition Proposal remains a Superior Proposal even after giving effect non-public information to Parent (to the adjustments proposed by Purchaser and provided further that extent such termination shall non-public information has not be effective until been previously so furnished); and (ii) engage in discussions or negotiations with the Company has paid third party with respect to the Break-up Fee and Expense Payment to PurchaserAlternative Transaction Proposal.

Superior Proposal. By Notwithstanding the Company prohibition on solicitation, at any time following the date of the merger agreement and prior to the date on which the Company stockholder approval has been Requisite Vote (as defined below) is obtained, Asensus and its representatives may furnish non-public information concerning Asensus’ business, properties or assets to any person in order accordance with a confidentiality agreement with terms no less favorable in the aggregate to concurrently enter into an 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 has been received by the Company and the Company Board in compliance with Sections 6.6(a) and (b) and that the Company Board concludes in good faith, in consultation with its financial and legal advisors, that such Acquisition Proposal is a Superior Proposal; provided, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Asensus Board determines in good faith, after consultation with its independent ▇▇▇▇▇▇▇’ outside counsel and financial advisor, is or is reasonably likely to be lead to a Superior Proposal. From and after the fair value 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 subsidiary 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-cash considerationpublic 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 only 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 (iA) during 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 fiveagreement unless the Asensus Board determines in good faith, after consultation with the Company’s outside counsel, that the failure to do so would be inconsistent with the fiduciary duties of the Asensus Board 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 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 otherwise complying with, this provision, Asensus will promptly provide to Parent any non-calendar day periodpublic information concerning Asensus or any Company subsidiary provided or made available in accordance with 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 or consolidated total assets of Asensus and the Company has caused Subsidiaries on terms which the Asensus Board determines in its financial and legal advisors to negotiate with Purchaser in good faith judgment to make such adjustments in 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 this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal proposal and (ii) the Company merger agreement, which the Asensus Board has considered such adjustments in 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 and conditions other aspects of this Agreement resulting from such negotiations proposal and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until terms of the Company has paid the Break-up Fee and Expense Payment to Purchasermerger agreement.

Superior Proposal. By Notwithstanding anything to the contrary contained in Section 6.2(a), in the event that the Company at any time receives after the date of this Agreement, 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 stockholder approval has been obtained, in order to concurrently enter into an Acquisition Proposal that has been received by may then take the Company and the Company Board in compliance with Sections 6.6(afollowing actions (but only if (x) and (bA) and that the Company Board concludes in good faith, in after consultation with its financial and outside legal advisorscounsel, that such Acquisition Proposal it is a Superior Proposal; providedrequired to do so in order to comply with its fiduciary duties under applicable Law, however, that this Agreement may be terminated by the Company pursuant to this Section 8.1(g(B) only after the fifth calendar day following the Company’s provision of written notice to Purchaser advising Purchaser that the Company Board is prepared to accept a Superior Proposal and setting forth the material terms and conditions of any such Superior Proposal, including the amount per share the Company’s stockholders will receive per share of Company Common Stock (valuing any non-cash consideration at what the Company Board determines in good faithfaith that, after consultation with its independent outside legal counsel and financial advisoradvisors that such Alternative Transaction Proposal is, or could reasonably be expected to be lead to, a Superior Proposal, and (C) the fair value Company has given Parent prior written notice of its intention to take any of the non-cash consideration)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 only if continues to comply with all, of the provisions of this Section 6.2): (i) during furnish nonpublic information with respect to the Company and the Company Subsidiaries to the Person or group making such five-calendar day periodAlternative 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 has caused Company’s ability to consummate the Transactions or to comply with its financial disclosure obligations to Parent pursuant to this Agreement, and legal advisors (B) substantially concurrently with furnishing any such nonpublic information to negotiate with Purchaser in good faith such Person or group, it furnishes such nonpublic information to make such adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal and Parent; and (ii) the Company Board has considered engage in discussions or negotiations with such adjustments in the terms and conditions of this Agreement resulting from Person or group with respect to such negotiations and has concluded in good faith, based upon consultation with its financial and legal advisers, that such Acquisition Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Purchaser and provided further that such termination shall not be effective until the Company has paid the Break-up Fee and Expense Payment to PurchaserAlternative Transaction Proposal.