Response by Acquireco. During the Response Period, Acquireco shall have the right, but not the obligation, to offer in writing to amend the terms of this agreement. The board of directors of Target shall review any such written offer by Acquireco to amend this agreement in good faith, in consultation with its financial advisors and outside legal counsel, to determine whether the Acquisition Proposal to which Acquireco is responding would be a Superior Proposal when assessed against this agreement, as would be amended in accordance with the written amendments, if any, proposed by Acquireco before the end of the Response Period. If the board of directors of Target does not so determine by formal resolution, it shall enter into an amended agreement with Acquireco and Canco reflecting Acquireco’s proposed written amendments. Provided that neither Acquireco nor Canco is in breach of or has failed to perform any of its representations, warranties covenants or agreements set forth in this agreement, where such breach or failure would render Acquireco and Canco incapable of consummating the Transactions, if the board of directors of Target does so determine then, subject only to Target paying (or causing to be paid) to Acquireco $32 million (the “Termination Fee”) in immediately available funds to an account designated by Acquireco, Target may enter into a definitive agreement, undertaking or arrangement in respect of, a Superior Proposal; provided that in no event shall the board of directors of Target take any action prior to the end of the Response Period that may obligate Target or any other person to seek to interfere with the completion of the Transactions, or impose any “break-up,” “hello” or other fees or options or rights to acquire assets or securities, or any other obligations that would survive completion of the Transactions, on Target or any of its Subsidiaries, property or assets.
