Common use of Superior Proposal Clause in Contracts

Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the receipt of the Company Stockholder 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Competing Proposal received after the date hereof that did not result from a breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days).

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 5.04(a), at any time prior to the receipt of the Requisite Company Stockholder ApprovalVote, the Company Board (or any duly authorized committee thereof) mayBoard, in response 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 negotiations or discussions with any third party that has made (and not withdrawn) a bona fide written Competing fide, unsolicited Takeover Proposal received after the date hereof in writing that did not result from a breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company Board or Parent Board, as applicable, believes in good faith, after consultation with its financial advisors and outside legal counsel, constitutes or would reasonably be expected to enter into result in a binding Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to such party or any of its respective Subsidiaries pursuant to an 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 definitive written Alternative Acquisition Agreement with respect to 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 only if: referred to in the foregoing clauses (i) through (iv), only if the Company Board (or any duly authorized committee thereof) Parent Board, as applicable, determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) the failure to take such action would reasonably be inconsistent with expected to cause it to be in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice Law. Nothing contained herein shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, prevent the Company Board (or any duly authorized committee thereofParent Board, as applicable, from disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) again determines in good faithpromulgated under the Exchange Act with regard to a Takeover Proposal, if the party determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action position would reasonably be inconsistent with expected to cause its board to be in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Law.

Superior Proposal. Notwithstanding anything to the contrary contained in this Agreementherein, at any time prior to the receipt Offer Closing, the Board of Directors of the Company Stockholder Approval, the Company Board (or any duly authorized committee thereof) maymay (i) effect a Company Adverse Recommendation Change in respect of an Acquisition Proposal, or (ii) if it elects to do so in response to the receipt of connection with or following 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 withdrawnCompany Adverse Recommendation Change, make a Change of Company Recommendation or terminate this Agreement in accordance with pursuant to Section 7.01(d9.03(a) in order to cause the Company to enter into a binding and definitive written an Alternative Acquisition Agreement relating to an Acquisition Proposal, if and only if, in either case: (A) an Acquisition Proposal is made to the Company by a third party, such offer is not withdrawn and the Company has not breached this Section 7.02; (B) the Board of Directors of the Company or any committee thereof determines in good faith after consultation with respect to outside legal counsel and a financial advisor that such offer constitutes a Superior Proposal; (C) following consultation with outside legal counsel, in each case only if: (i) the Board of Directors of the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors 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 Law; (B) such Competing Proposal constitutes a Superior Proposal, (iiD) the Company provides has given Parent written notice at least three (3) Business Days Days’ prior to effecting a Change written notice of Company Recommendation of the Company Board’s its intention to take such action, specifying the reasons therefor action (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive the Acquisition Proposal, a copy of the relevant proposed transaction agreements and documentation a copy of any financing commitments relating thereto and a written summary of the material terms of any Acquisition Proposal not made in respect thereof writing, including any financing commitments relating thereto) (it being agreed understood that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (any material revision or amendment to the extent Parent desires terms of such Acquisition Proposal shall require a new notice and, in such case, all references to negotiatethree Business Days in this Section 7.02(e) during such three shall be deemed to be two Business Days); (3E) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than following the end of such three (3) Business Day notice period, the Board of Directors of the Company Board (or any duly authorized committee thereof) again determines shall have considered in good faithfaith any proposed revisions to this Agreement proposed in writing by Parent and, after consultation with its outside financial advisors and outside legal counsel and a financial advisor, the Board of Directors of the Company (or any committee thereof) shall have again determined in good faith that the Acquisition Proposal continues to constitute a Superior Proposal and, after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodconsultation with outside legal counsel, that (A) the failure to take such action would be inconsistent with reasonably likely to result in a breach of its fiduciary duties under applicable Law Law; and (BF) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to Company pays the amount, form or mix of consideration payableCompany Termination Fee in accordance with Section 9.05(c) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)if due thereunder.

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 6.05(a), at any time prior to the receipt of the Company Stockholder ApprovalRequisite Giga Vote, the Company Giga Board, directly or indirectly through any Representative, may, subject to Section 6.05(c): (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Giga Board believes in good faith, after consultation with its financial advisors and outside legal counsel, constitutes or would reasonably be expected to result in a Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to such party or any duly authorized committee thereofof its respective Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within two Business Days) may, in response provided for informational purposes to the GWW); (iii) following receipt of a bona fide written Competing Proposal received after the date hereof that did not result from a breach and on account of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, make a Giga Adverse Recommendation Change; 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 only if: referred to in the foregoing clauses (i) and (ii), only if the Company Giga Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (Asuch actions could lead to or would reasonably be expected to result in a Superior Proposal or could reasonably be expected to result in a Superior Proposal. Nothing contained herein shall prevent the Giga Board from disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Giga Board determines, after consultation with its financial advisors and outside legal counsel, that failure to take disclose such action position would cause its board to be inconsistent with in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Law.

Superior Proposal. Notwithstanding anything to the contrary contained in Section 8.1 and any other provision of this Agreement, at any time the Board of Directors of Coalhunter may, subject to this Article 8, prior to the receipt approval of the Company Stockholder ApprovalArrangement by Coalhunter Shareholders and Coalhunter Special Warrant Holders, (i) consider and participate, directly or indirectly, in any discussions or negotiations with, or provide information to, or permit any visit to the Company Board (facilities or properties of Coalhunter or any duly authorized committee thereof) mayof its subsidiaries by, in response to the receipt of 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 agreement in respect of, a Superior Proposal, but in each case only if such Competing Offer or Superior 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause by Coalhunter and if the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) of Directors of Coalhunter determines in good faithfaith after consulting with outside counsel (which may include written opinions or advice, after consultation with its outside financial advisors and outside legal counsel, copies of which shall have been provided to Cardero) that (A) failure to take such action would be inconsistent is required for such directors to comply with its their fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior ProposalLaw. Nothing in this Agreement will prohibit, (ii) enjoin or otherwise restrict the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change Board of Company Recommendation Directors of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments Coalhunter in the terms and conditions fulfilment of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its their fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, Law. Coalhunter acknowledges that it is not currently engaged in any change to the financial terms (including discussions or negotiations with any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis parties (other than the number Cardero) in connection with any proposal that constitutes, or may reasonably be expected to constitute, a Competing Offer or an Alternative Company Transaction and that it will not solicit from any parties a Competing Offer or Alternative Company Transaction in breach of days)this Agreement.

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 6.04(a), at any time prior to the receipt of the Requisite Company Stockholder ApprovalVote, the Company Board (Board, directly or indirectly through any duly authorized committee thereof) Representative, may, subject to Section 6.04(c) and in response to the receipt of any third party that has made (and not withdrawn) a bona fide written Competing fide, unsolicited Takeover Proposal received in writing (a) after the date hereof that did of this Agreement, or (b) prior to the date of this Agreement but which has been materially amended and delivered after the date of this Agreement, not result resulting from a breach of Section 5.03(a) and is not withdrawn6.04(a), make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause that the Company Board determines in good faith after consultation with outside legal counsel and the Company financial Advisor constitutes or is reasonably likely to enter into result in a binding and definitive written Alternative Acquisition Agreement Superior Proposal: (i) participate in discussions or negotiations with such third party with respect to such Takeover Proposal (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; (iii) subject to Section 6.04(d), following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; (iv) amend or grant any waiver or release under any standstill, confidentiality or similar agreement; and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case only if: referred to in the foregoing clauses (i) through (v), only if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counselcounsel and the Company Financial Advisor, that (A) the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice Law. Nothing contained herein shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, prevent the Company Board (from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or any duly authorized committee thereof) again determines in good faithotherwise complying with its disclosure obligations under U.S. federal securities Laws with regard to a Takeover Proposal, if the Company determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action position would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix violation of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)applicable Law.

Superior Proposal. Notwithstanding anything The MLP GP Board shall be entitled to effect, or cause the MLP Entities to effect, a Withdrawal of Recommendation in connection with a Superior Proposal (to the contrary contained extent permitted under Section 6.4(c)), only if (A) the MLP Entities shall have delivered to Parent a written notice (a “Superior Proposal Notice”) (1) stating that the MLP GP Board intends to take such actions pursuant to Section 6.4(c), (2) stating that the MLP GP Board has made the determinations set forth in this Agreement, at any time prior to the receipt of the Company Stockholder 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(aSections 6.4(c)(i)(A) and is not withdrawn, make a Change 6.4(c)(ii) and (3) including an unredacted copy of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding such Superior Proposal and definitive written proposed and unredacted form of any Alternative Acquisition Agreement with respect related to a such Superior ProposalProposal (including any materials relating to such Person’s proposed equity and debt financing, in each case only if: (iif any) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) the Negotiation Period shall have expired. During the four Business Day period commencing on the date of Parent’s receipt of such Competing Superior Proposal constitutes a Superior ProposalNotice (such period, (ii) as may be extended pursuant to this Section 6.4(d)(i), the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of RecommendationNegotiation Period”), which notice the MLP Entities shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shallengage, and shall cause its their Representatives toto be available for the purpose of engaging, negotiate with Parent in good faith negotiations with Parent (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions regarding an amendment of this Agreement as would obviate so that the basis for a Change Alternative Proposal that is the subject of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments Superior Proposal Notice ceases to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; providedprovided that, that as is the case with any change Superior Proposal, any such amendment must reflect a transaction in which the value differential between the consideration to be received by the Public Unitholders in such transaction and the consideration to be received by the Sponsors and Founding Unitholders in such transaction equals the Agreed Merger Consideration Differential. Each time the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms or conditions of such Competing Bona Fide Alternative Proposal (whether or not in response terms or conditions related thereto, such as the proposed equity and debt financing) are amended or modified, the MLP Entities shall be required to any changes proposed by deliver to Parent pursuant to clause (iii)) shall require a new Superior Proposal Notice (including, as attachments thereto, amended forms of Change of Recommendation the written Alternative Acquisition Agreements relating to such Bona Fide Alternative Proposal) and the Negotiation Period shall be extended by an additional three (3) two Business Day period Days from the date of Parent’s receipt of such notice during which the terms of clause (i) through (ivnew Superior Proposal Notice. Nothing set forth in this Section 6.4(d)(i) shall apply mutatis mutandis (other than extend or be deemed to extend the number of days)Unitholder Consent Period.

Superior Proposal. Notwithstanding anything herein to the contrary contained contrary, the Red Cat Board, directly or indirectly through any Representative, may, subject to Section 8.07(c): (i) participate in this negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Red Cat Board believes in good faith, after consultation with its financial advisors and outside legal counsel, constitutes or could reasonably be expected to result in a Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to such Party or any of its Subsidiaries pursuant to an executed Confidentiality Agreement that constitutes an acceptable Confidentiality Agreement (“Acceptable Confidentiality Agreement, at any time prior ”) (a copy of which Confidentiality Agreement shall be promptly (in all events within 72 hours) provided for informational purposes to the other Party); (iii) following receipt of the Company Stockholder Approval, the Company Board (or any duly authorized committee thereof) may, in response to the receipt and on account 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, make a Red Cat Adverse Recommendation Change; 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 only if: referred to in the foregoing clauses (i) through (iv), only if the Company Red Cat Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) the failure to take such action would could cause it to be inconsistent with in breach of its fiduciary duties under applicable Law Law. Nothing contained herein shall prevent the Red Cat Board from disclosing to its stockholders a position contemplated by Rule 14d-9 and (BRule 14e-2(a) such Competing Proposal constitutes promulgated under the Exchange Act with regard to a Superior Takeover Proposal, (ii) if the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faithParty determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action would position could cause Red Cat Board to be inconsistent with in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Law.

Superior Proposal. Notwithstanding anything to the contrary contained in this Agreementherein, at any time prior to the receipt time the Company Shareholder Approval is obtained, but not after, the Board of Directors of the Company Stockholder Approval, the Company Board (or any duly authorized committee thereof) maymay terminate this Agreement pursuant to Section 9.03(a) to enter into an Alternative Acquisition Agreement relating to any Acquisition Proposal, in response to the receipt of a bona fide written Competing which Acquisition Proposal received after the date hereof that did not result from a any breach of this Section 5.03(a) and is not withdrawn, make a Change 7.02 if the Board of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause Directors of the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines has determined in good faith, after consultation with its outside financial advisors advisor and outside legal counsel, (x) that (A) failure to take such action would be reasonably likely to be inconsistent with its the directors’ fiduciary duties under applicable Law and (By) that such Competing Acquisition Proposal constitutes a Superior Proposal; provided, however, that (ii1) the Board of Directors of the Company provides (or any committee thereof) has given Parent written notice at least three (3) Business Days Days’ prior to effecting a Change written notice of Company Recommendation of the Company Board’s its intention to take such action, specifying the reasons therefor action (a “Notice of Change of Recommendation”), which notice shall identify include an unredacted copy of the person making such Competing Superior Proposal, describe an unredacted copy of the terms relevant proposed transaction agreements and conditions of such Competing Proposal and include a copy of all definitive agreements any financing commitments relating thereto and documentation in respect thereof (it being agreed that neither the delivery a written summary of the Notice material terms of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendationany Superior Proposal not made in writing, including any financing commitments relating thereto), (iii2) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than following the end of such three (3) Business Day notice period, the Board of Directors of the Company Board (or any duly authorized committee thereof) again determines shall have considered in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering faith any written, binding and irrevocable amendments proposed revisions to the terms and conditions of this Agreement proposed in writing by Parent during such three (3) Business Day period, and shall have determined that (A) the Superior Proposal continues to constitute a Superior Proposal and that failure to take such action would be reasonably likely to be inconsistent with its the directors’ fiduciary duties under applicable Law and (B3) such Competing Proposal continues to constitute a Superior Proposal; provided, that in the event of any material change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not Superior Proposal, the Company shall, in response each case, have delivered to any changes proposed by Parent pursuant to an additional notice consistent with that described in clause (iii)1) above and the notice period in clause (1) shall require a new Notice of Change of Recommendation have recommenced and an additional three the condition in clause (32) shall have been satisfied again, except that the notice period shall be at least one Business Day period from (rather than the date of such notice during which the terms of three Business Days otherwise contemplated by clause (i1) through (iv) shall apply mutatis mutandis (other than the number of daysabove).

Superior Proposal. Notwithstanding anything to the contrary contained set forth in this Agreement, at any time prior to the receipt time, but not after, the Company Requisite Vote is obtained, the Board of Directors of the Company Stockholder Approval, the Company Board (or any duly an 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 or may terminate this Agreement pursuant to and in accordance with Section 7.01(d8.3(a) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: if (i) after the date hereof, the Company receives a Superior Proposal that is not subject to due diligence, (ii) the Board of Directors of the Company (or any duly an authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action do so would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior ProposalLaw, (iiiii) the Company provides notifies Parent written notice in writing, at least three five (35) Business Days prior in advance, that it intends to effecting a Change of Company Recommendation of the Company Board’s intention terminate this Agreement pursuant to take Section 8.3(a) with respect to such action, specifying the reasons therefor (a “Notice of Change of Recommendation”)Superior Proposal, which notice shall identify specify the person making identity of the party who made such Competing Proposal, describe Superior Proposal and all of the material terms and conditions of such Competing Superior Proposal and, unless previously delivered to Parent, attach the most current version of such agreement; (iv) after providing such notice and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting terminating this Agreement pursuant to Section 8.3(a) with respect to such Change of Company RecommendationSuperior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith on an exclusive basis with Parent during such five (5)-Business Day period (to the extent that Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in revisions to the terms and conditions of this Agreement and the Financing Commitment as would obviate permit the basis for a Change Board of Directors of the Company Recommendation, not to terminate this Agreement pursuant to Section 8.3(a) in response to such Superior Proposal; and (ivv) no earlier than the end Board of such three (3) Business Day period, Directors of the Company Board (or any duly an authorized committee thereof) again determines shall have considered in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering faith any written, binding and irrevocable amendments changes to the terms and conditions of this Agreement proposed by Parent during and the Financing Commitment and shall have determined in good faith that such three (3) Business Day period, that (A) failure to take such action Superior Proposal would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues continue to constitute a Superior Proposal that is not subject to due diligence if such changes offered by Parent were to be given effect; provided that in the event that the Superior Proposal is thereafter modified by the party making such Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms Company shall provide written notice of such Competing modified Superior Proposal (whether or not in response to any changes proposed by Parent and shall again comply with this Section 6.2(e) and provide Parent with an additional notice prior to terminating this Agreement pursuant to clause Section 8.3(a) (iii)) and shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of daysdo so for each subsequent modification).

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 6.2(a), at any time prior to the receipt of the Requisite Company Stockholder ApprovalVote, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.2(b): (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with its financial advisors and outside legal counsel, would be reasonably likely to constitute or result in a Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to the Company or any duly authorized committee thereofof its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) may, in response provided for informational purposes only to the Parent); (iii) following receipt of a bona fide written Competing Proposal received after the date hereof that did not result from a breach and on account of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, make a Company Adverse Recommendation Change; and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case only if: referred to in the foregoing clauses (i) through (iv), only if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) the failure to take such action would be inconsistent with reasonably likely to cause the Company Board to be in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice Law. Nothing contained herein shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, prevent the Company Board (or any duly authorized committee thereoffrom disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) again determines in good faithpromulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action position would be inconsistent with reasonably likely to cause the Company Board to be in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Law.

Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, if, at any time from and after the No-Shop Period Start Date and prior to the receipt of the Company Stockholder ApprovalOffer Closing, the Company Board (or any duly authorized committee thereof) may, in response to the receipt of receives a bona fide written Competing Takeover Proposal received after the date hereof that is not withdrawn from any Person that did not result from or involve a breach of Section 5.03(a) 6.03(b), and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, (i) that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (Aii) failure to take such action the actions set forth in clauses (A) and (B) below would be inconsistent with its the Company Board’s fiduciary duties under applicable Law 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) such Competing Proposal constitutes a Superior Proposalengage in, (ii) facilitate or otherwise participate in discussions or negotiations with the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person Person making such Competing Proposal, describe the terms and conditions of such Competing Takeover Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with regarding such Takeover Proposal. The Company Board shall promptly (and in any event within 24 hours) notify Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, writing if the Company Board (or any duly authorized committee thereofmakes the determinations set forth in this Section 6.03(c). Nothing in this Section 6.03(c) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments shall limit the Company’s rights prior to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure Cut-Off Time with respect to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Excluded Party.

Superior Proposal. Notwithstanding anything Between the date of this Agreement and the Closing Date, the Sellers and their directors (to the contrary contained extent acting in their capacity as such), officers, employees, Affiliates (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended), financial advisors and other advisors or representatives (collectively, the “Representatives”) shall not directly, knowingly or intentionally (i) initiate, solicit and encourage any Purchase Proposal (as defined below), including by way of providing access to non-public information pursuant to confidentiality agreements; or (ii) enter into, continue or maintain discussions or negotiations with respect to any Purchase Proposal or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations. If between the date of this AgreementAgreement and the Closing Date, at the Sellers receive any time prior Purchase Proposal that the Toreador Board of Directors (the “Toreador Board”) (i) concludes in good faith constitutes a transaction that is more favorable to the receipt Toreador’s stockholders, from a financial point of view and taking into account all legal, financial, regulatory and other aspects of the Company Stockholder Approvalproposal, than the Company Board transactions contemplated by this Agreement (or including any duly authorized committee thereof) may, proposed alterations of the terms of this Agreement submitted by Buyer in response to a Superior Proposal Notice (as defined below)), (ii) after consultation with outside legal counsel, concludes in good faith that the failure to take such action would constitute a breach by the Toreador Board of its fiduciary duties to the Toreador stockholders under applicable law, and (iii) after entering into a confidentiality agreement with Buyer, provides a written notice to Buyer of the Sellers’ intention to accept such Purchase Proposal (each such Purchase Proposal being referred to as a “Superior Proposal” and collectively, as “Superior Proposals”), which notice (a “Superior Proposal Notice”) shall describe the material terms and conditions of the Superior Proposal, then on or after the fifth Business Day (the five Business Day period being referred to as the “Negotiation Period”) after Buyer’s receipt of such Superior Proposal Notice so long as such Superior Proposal is similar in all material respects to the Superior Proposal described in the Superior Proposal Notice, the Sellers may enter into a bona fide written Competing binding agreement with respect to such Superior 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause 11.1; provided, however, during the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a applicable five Business Day Negotiation Period after Buyer receives the Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company RecommendationNotice, the Company shall, and Sellers shall cause its Representatives to, be obligated to negotiate with Parent in good faith with the Buyer (to the extent Parent Buyer desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as such that the Superior Proposal would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines longer be determined in good faithfaith by the Toreador Board, after in consultation with its outside financial advisors and outside legal counsel and after considering any writtenadvisors, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided. As used in this Agreement, that the term “Purchase Proposal” shall mean any change to the financial terms (including any change to the amountoffer, form agreement, proposal or mix indication of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis interest (other than this Agreement) relating to or involving the number acquisition or purchase from Sellers of days)all or any portion of the Properties.

Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the receipt of time the Company Stockholder ApprovalShareholder Approval is obtained, but not after, the Company Board of Directors (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 or may terminate this Agreement in accordance with pursuant to Section 7.01(d9.1(d)(i) in order to cause the Company to enter into a binding and definitive written an Alternative Acquisition Agreement with respect relating to any Company Acquisition Proposal or recommend a Superior ProposalCompany Acquisition Proposal which Company Acquisition Proposal did not arise or result from any breach of this Section 6.4; provided, in each case only if: (i) case, that the Company Board of Directors (or any duly authorized committee thereof) determines has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, (x) that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) that such Company Acquisition Proposal constitutes a Company Superior Proposal; provided, however, that (Ai) the Company Board of Directors (or any committee thereof) has given Parent at least three (3) Business Days’ prior written notice of its intention to take such action (which notice shall include an unredacted copy of any Company Superior Proposal, an unredacted copy of the relevant proposed transaction agreements and a copy of any financing commitments relating thereto, a written summary of the material terms of any Company Superior Proposal not made in writing, including any financing commitments relating thereto (such notice a “Company Superior Proposal Notice”), (ii) following the end of such notice period, during which time the Company Board of Directors (or any committee thereof) shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal to the extent Parent wishes to do so, the Company Board of Directors (or any committee thereof) shall have considered in good faith any proposed revisions to this Agreement proposed in writing by Parent and shall have determined that the Company Superior Proposal continues to constitute a Company Superior Proposal (taking such proposed revisions into account) and that failure to take such action would be reasonably expected to be inconsistent with its the directors’ fiduciary duties under applicable Law Law. In the event that the Company provides a Company Superior Proposal Notice on a date which is fewer than five (5) Business Days prior to the Company Meeting, the Company shall be entitled to adjourn or postpone the Company Meeting to a date that is not more than fifteen (15) days after the date of such Company Superior Proposal Notice and in the event of any subsequent material change to the material terms of such Company Superior Proposal prior to the termination of the Agreement pursuant to Section 9.1(d)(i), the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (Bi) such Competing Proposal constitutes a Superior Proposal, above and the notice period in clause (i) shall have recommenced and the condition in clause (ii) shall have been satisfied again, except that the Company provides Parent written notice period shall be at least one (1) Business Day (rather than the three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed otherwise contemplated by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of daysabove).

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 3.8(a), at any time prior to Purchaser obtaining the receipt of the Requisite Company Stockholder ApprovalVote (if applicable), the Company Board, directly or indirectly through any Representative, may, subject to Section 3.8(c): (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to the Company or any duly authorized committee thereofof its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) may, in response provided for informational purposes only to the Purchaser); (iii) following receipt of a bona fide written Competing Proposal received after the date hereof that did not result from a breach and on account of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, make a Company Adverse Recommendation Change; and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case only if: referred to in the foregoing clauses (i) through (iv), only if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) the failure to take such action would cause the Company Board to be inconsistent with in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice Law. Nothing contained herein shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, prevent the Company Board (or any duly authorized committee thereoffrom disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) again determines in good faithpromulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action position would cause the Company Board to be inconsistent with in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Law.

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 5.04(a), at any time prior to the receipt of the Requisite Company Stockholder ApprovalVote, the Company Board (or any duly authorized committee thereof) mayBoard, in response 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 negotiations or discussions with any third party that has made (and not withdrawn) a bona fide written Competing fide, unsolicited Takeover Proposal received after the date hereof in writing that did not result from a breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company Board or Parent Board, as applicable, believes in good faith, after consultation with outside legal counsel and, in the case of Parent, Parent’s financial advisor, as applicable, constitutes or would reasonably be expected to enter into result in a binding Superior Proposal; (ii) thereafter furnish to such third party non-public information relating to such party or any of its respective Subsidiaries (if any) pursuant to an 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 definitive written Alternative Acquisition Agreement with respect to 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 only if: referred to in the foregoing clauses (i) through (iv), only if the Company Board (or any duly authorized committee thereof) Parent Board, as applicable, determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) the failure to take such action would reasonably be inconsistent with expected to cause it to be in breach of its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice Law. Nothing contained herein shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, prevent the Company Board 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 Exchange Act, the Business Corporations Act (Alberta) or any duly authorized committee thereof) again determines in good faithNational Instrument 61-101, as applicable, with regard to a Takeover Proposal, if the party determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action position would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix violation of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)applicable Law.

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementIf, at any time prior to the receipt Closing Date, SELLER receives an Acquisition Proposal from any Qualified Purchaser(s) that the Board of the Company Stockholder Approval, the Company Board (or any duly authorized committee thereof) may, in response to the receipt Directors 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines PARENT concludes in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal faith constitutes a Superior Proposal, 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 Company provides Parent written notice at least three (3) Business Days prior Premises, that has been provided by the Qualified Purchaser in connection with the Superior Proposal that has not previously been provided to effecting a Change of Company Recommendation of the Company Board’s intention to take such actionBUYER, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior shall not enter into any confidentiality provisions restricting the provision of such materials to effecting such Change BUYER. Any materials, including a term sheet, a letter of Company Recommendationintent or definitive agreement, given to BUYER in connection with the Company shallSuperior Proposal, and (A) shall cause its Representatives tobe designated "Trade Secret" by SELLER, negotiate with Parent in good faith (B) shall be subject to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement trade secret protocol established by SELLER attached hereto as would obviate the basis for a Change of Company RecommendationSchedule 6.a., and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)C) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from be kept confidential by BUYER in accordance with the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Confidentiality Letter.

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementSection 6.04(a), at any time prior to the receipt of the Company Stockholder ApprovalOffer Closing, the Company Board (Board, directly or indirectly through any duly authorized committee thereof) Representative, may, subject to Section 6.04(c) and Section 6.04(d): (i) participate in response to the receipt of a bona fide written Competing Proposal received negotiations or discussions with any third party that, after the date hereof hereof, has made (and not withdrawn) a bona fide, unsolicited Takeover Proposal in writing that did not result from a material breach of this Section 5.03(a6.04 and which the Company Board believes in good faith, after consultation with its financial advisor and outside legal counsel, constitutes or would reasonably be expected to result in a Superior Proposal; (ii) thereafter furnish to such third party information relating to the Company or any of its Subsidiaries pursuant to Acceptable Confidentiality Agreement (provided that the Company shall substantially concurrently provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person to the extent access to such information was not previously provided to Parent); and/or (iii) following receipt of and is on account of a Superior Proposal that did not withdrawnresult from a material breach of this Section 6.04, make a Company Adverse Recommendation Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, but in each case only if: referred to in the foregoing clauses (i) through (iii), only if (A) the provisions of Section 6.04(c) and Section 6.04(d) are complied with and (B) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) the failure to take such action would reasonably be expected to cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice Law. Nothing contained herein shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, prevent the Company Board (or any duly authorized committee thereoffrom disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) again determines in good faithpromulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day periodcounsel, that (A) failure to take disclose such action position would reasonably be expected to cause the Company Board’s actions or inactions with respect thereto to be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law and (B) such Competing Proposal continues to constitute a Superior ProposalLaw; provided, that neither the Company Board or any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed committee thereof shall make a Company Adverse Recommendation Change except as expressly permitted by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of daysSection 6.04(d).

Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, By Old Forge at any time prior to the receipt date ----------------- of mailing of the Company Stockholder ApprovalProspectus/Proxy Statement to Old Forge shareholders, 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter concurrently into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal; provided, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counselhowever, that (A) failure this Agreement may be terminated by Old Forge pursuant to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) this Section 9.1.10 only after the Company provides Parent fifth business day following Old Forge's provision of written notice at least three to Penseco (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify specify the person making such Competing Proposal, describe the material terms and conditions of any such Competing Proposal Superior Proposal, including the identity of the party making such Superior Proposal, and such notice shall also include a copy of all definitive the relevant proposed transaction agreements with the party making such Superior Proposal and documentation in respect thereof other material documents) advising Penseco that the Old Forge Board is prepared to accept such Superior Proposal (it being agreed that neither the delivery of the Notice such notice shall not entitle Penseco to terminate this Agreement pursuant to Section 9.1.5 or any other provision of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation)this Agreement) and only if (i) during such five business day period, (iii) prior Old Forge has caused its financial and legal advisors to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent Penseco in good faith (to the extent Parent desires Penseco chooses to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as such that such Alternative Proposal would obviate the basis for no longer constitute a Change of Company RecommendationSuperior Proposal, and (ivii) no earlier than the end of Old Forge Board has considered such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines adjustments in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to 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 Alternative Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by Parent during Penseco and further provided that such three (3) Business Day period, that (A) failure termination shall not be effective until Old Forge has paid the Termination Fee to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues Penseco. The party desiring to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response terminate this Agreement pursuant to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis this Section 9.1 (other than Section 9.1.1) shall give written notice of such termination to the number of days)other party in accordance with Section 10.4, specifying the provision or provisions hereof pursuant to which such termination is effected.

Superior Proposal. Notwithstanding anything to “Superior Proposal” shall mean any bona fide written Alternative Acquisition Proposal by a third party not affiliated with the contrary contained in this Agreement, at Company or any time prior to the receipt Person who was a director or executive officer of the Company Stockholder Approvalas of May 17, 2008 to purchase all the outstanding capital stock of the Company, pursuant to a tender or exchange offer, a merger, a consolidation, a recapitalization or other business transaction, or to purchase business or businesses or assets that constitute or account for all or substantially all of the consolidated net revenues of the Company Board and its Subsidiaries, taken as a whole, and that (in each case): (A) was not obtained or any duly authorized committee thereof) may, in response to the receipt made as a direct or indirect result of a bona fide written Competing Proposal received after the date hereof that did not result from a breach of Section 5.03(a4.2 of the Agreement, or the Confidentiality Agreement, (B) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect subject to a Superior Proposal, in each case only if: (i) the Company Board financing (or any duly authorized committee thereofreverse break-up fee payable in the event of failure to obtain financing) determines contingency that is unlikely or uncertain to be satisfied, as determined in good faithfaith by the Company’s Board of Directors, and (C) is determined in good faith by the Company’s Board of Directors, after consultation with its outside the Company’s financial advisors advisor and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law counsel and (B) such Competing Proposal constitutes a Superior Proposal, (ii) taking into account all the Company provides Parent written notice at least three (3) Business Days prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the known terms and conditions of such Competing Alternative Acquisition Proposal, to contemplate a transaction that: (x) if consummated would be more favorable to the Company’s stockholders than the transactions contemplated by the Agreement (taking into account the terms of such Alternative Acquisition Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this the Agreement proposed by Parent during in a binding written offer provided by Parent to the Company in response to such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law Alternative Acquisition Proposal; and (By) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to is reasonably capable of being consummated by the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to third party on the terms of such Competing Alternative Acquisition Proposal (whether taking into account the relevant financial, legal and regulatory considerations associated with such Alternative Acquisition Proposal) (it being understood that an executive officer of the Company who elects to continue employment with such Person or its Affiliates after the consummation of any Alternative Acquisition Transaction shall not in response be deemed to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice be affiliated with the Company for purposes of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of daysthis definition).

Superior Proposal. Notwithstanding anything to the contrary contained set forth in this Agreement, at any time prior to the receipt time, but not after, the Stockholder Written Consent is obtained, the Board of Directors of the Company Stockholder Approval, the Company Board (or any duly an 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 or may terminate this Agreement pursuant to and in accordance with Section 7.01(d8.1(a)(v) in order to cause if (i) after the date hereof, the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to receives a Superior Proposal, in each case only if: (iii) the Board of Directors of the Company Board (or any duly an authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action do so would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior ProposalLaw, (iiiii) the Company provides Parent written notice notifies the Purchaser in writing, at least three five (35) Business Days prior in advance, that it intends to effecting a Change of Company Recommendation of the Company Board’s intention terminate this Agreement pursuant to take Section 8.1(a)(v) with respect to such action, specifying the reasons therefor (a “Notice of Change of Recommendation”)Superior Proposal, which notice shall identify specify the person making identity of the party who made such Competing Proposal, describe Superior Proposal and all of the material terms and conditions of such Competing Superior Proposal and, unless previously delivered to the Purchaser, attach the most current version of such agreement; (iv) after providing such notice and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting terminating this Agreement pursuant to Section 8.1(a)(v) with respect to such Change of Company RecommendationSuperior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith on an exclusive basis with the Purchaser during such five (5)-Business Day period (to the extent Parent that the Purchaser desires to negotiate) during such three (3) Business Day period to make such adjustments in revisions to the terms and conditions of this Agreement and the Financing as would obviate permit the basis for a Change Board of Directors of the Company Recommendation, not to terminate this Agreement pursuant to Section 8.1(a)(v) in response to such Superior Proposal; and (ivv) no earlier than the end Board of such three (3) Business Day period, Directors of the Company Board (or any duly an authorized committee thereof) again determines shall have considered in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering faith any written, binding and irrevocable amendments changes to the terms and conditions of this Agreement proposed by Parent during and the Financing and shall have determined in good faith that such three (3) Business Day period, that (A) failure to take such action Superior Proposal would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues continue to constitute a Superior ProposalProposal if such changes offered by the Purchaser were to be given effect; provided, however, that any change in the event that the Superior Proposal is thereafter modified by the party making such Superior Proposal, the Company shall provide written notice of such modified Superior Proposal to the financial terms (including any change Purchaser and shall again comply with this Section 4.3(d) and provide Purchaser with an additional notice prior to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent terminating this Agreement pursuant to clause Section 8.1(a)(v) (iii)) and shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of daysdo so for each subsequent modification).

Superior Proposal. Notwithstanding anything Section 5.04(a) (but subject to the contrary contained in this AgreementSection 5.04(d)), at any time prior to the receipt of the Company Stockholder ApprovalWritten Consent Effective Time, the Company Board (or any duly authorized committee thereof, including the Special Committee) may, in response to the receipt of a bona fide fide, written Competing Proposal received after the date hereof that did not result from a material breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines in good faith, acting upon the recommendation of the Special Committee after consultation with its outside financial advisors and outside legal counsel) determines in good faith, 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 Company provides Parent written notice at least three four (34) Business Days (such period, the “Notice Period”) prior to effecting a Change of Company Recommendation of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify include (A) the identity of the person making such Competing Proposal, describe (B) a description of the material terms and conditions of such Competing Proposal and include a (C) an unredacted copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation)thereof, (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiatenegotiate and without any requirement that Parent must reach a definitive agreement) during such three four (34) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three four (34) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, acting upon the recommendation of the Special Committee after consultation with its outside financial advisors and outside legal counsel counsel) again determines in good faith and after considering any written, binding and irrevocable proposed amendments to the terms and conditions of this Agreement proposed by Parent in writing during such three four (34) Business Day period, that (A) failure to take such action effect the Change of Company Recommendation would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal giving rise to the Notice of Change of Recommendation continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require the delivery by the Company of a new Notice of Change of Recommendation to Parent and an additional three two (32) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days).

Superior Proposal. Notwithstanding anything to the contrary foregoing, nothing contained in this AgreementSection 7 shall prohibit the Company’s Board of Directors (the “Company Board”) from taking and disclosing to the Company’s shareholders its position with respect to any tender or exchange offer by a third party as required by law, at any time based on the advice of the Company’s outside advisors. Notwithstanding the foregoing, prior to the receipt of the Company Stockholder ApprovalShareholders Meeting, the Company Board (and its Representatives may furnish non-public information concerning its business, properties or assets to any duly authorized committee thereof) mayPerson pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement and may negotiate and participate in discussions, negotiations and inquiries with such Person concerning an Acquisition Proposal if, but only if, such person has, in response to the receipt absence of any violation of this Section 7 by the Company, submitted a bona fide written Competing proposal to the Company relating to any such Acquisition Proposal received which the Company Board determines in its good faith, after consultations with its 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 that did not result from a breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order prior to cause the Company to enter into a binding Shareholders Meeting, the Company shall promptly (and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: any event within twenty-four (24) hours) notify the Parent in the event that the Company or any of its Subsidiaries or Representatives receives (i) the Company Board (any Acquisition Proposal or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, indications that (A) failure to take such action would an Acquisition Proposal may be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes prepared by a Superior Proposalthird party, (ii) any request for non-public information relating to the Company provides 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 written notice at least three promptly (3and in any event within such twenty-four (24) Business Days prior to effecting hour period) with the identity of such Person and a Change copy of Company Recommendation such Acquisition Proposal, indication, inquiry or request (or, where such communication was not in writing, a description of the Company Board’s intention to take such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the material terms and conditions of such Competing Proposal Acquisition Proposal, indication, inquiry or request), including any modifications thereto. The Company shall keep the Parent reasonably informed on a current basis (and include a copy in any event no later than twenty-four (24) hours after the occurrence of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery any changes, developments, discussions or negotiations, unless these can be considered de minimis) of the Notice status of Change any Acquisition Proposal, indication, inquiry or request (including the terms and conditions thereof and of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendationany modification thereto), (iii) prior to effecting 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 Change of Company Recommendationcommunication 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 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 party, and (B) shall, and shall cause its Representatives Subsidiaries to, negotiate with Parent use reasonable best efforts to enforce the provisions of any such agreement against third parties. The Company will promptly (and in good faith any event within twenty-four (24) hours) provide to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, any information concerning the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments Subsidiaries provided or made available pursuant to this Section 7 which was not previously provided or made available to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Parent.

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementIf, at any time prior to the receipt Exclusivity Period, SELLER receives an Acquisition Proposal from any Qualified Purchaser that the Board of the Company Stockholder Approval, the Company Board (or any duly authorized committee thereof) may, in response to the receipt Directors 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines PARENT concludes in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal faith constitutes a Superior Proposal, any or all of PARENT and each other SELLER may enter into an Alternative Acquisition Agreement, except that such Alternative Acquisition Agreement must be conditioned upon BUYER’s failure to exercise its rights set forth in subparagraph (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 Company provides Parent written notice at least three (3) Business Days prior Premises, that has been provided by the Qualified Purchaser in connection with the Alternative Acquisition Agreement that has not previously been provided to effecting a Change of Company Recommendation of the Company Board’s intention to take such actionBUYER, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior shall not enter into any confidentiality provisions restricting the provision of such materials to effecting such Change of Company RecommendationBUYER; provided that, the Company shallAlternative Acquisition Agreement, and any other materials given to BUYER in connection with the Alternative Acquisition Agreement, shall cause its Representatives to, negotiate be designated "Trade Secret" by SELLER and shall be kept confidential by BUYER in accordance with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Confidentiality Letter.

Superior Proposal. Notwithstanding anything to By Folsom Lake Bank in the contrary contained in this Agreement, at any time prior to the receipt of the Company Stockholder 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 event that did not result from a breach of Section 5.03(a) and is not withdrawn, make a Change of Company Recommendation or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter it enters into a binding and definitive written Alternative agreement to effect an Acquisition Agreement Event in connection with respect to a Superior Proposal; provided, in each case only if: however, that (i) the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal constitutes a Superior Proposal, (ii) the Company Folsom Lake Bank provides Parent CVCY prior written notice at least three five (35) Business Days business days (or such longer period as it may be extended upon modification or amendment of the Acquisition Proposal) prior to effecting a Change of Company Recommendation of the Company Board’s intention to take taking such action, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify state that the person making such Competing ProposalFolsom Lake Bank Board has received a Superior Proposal and, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or absent any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments revision to the terms and conditions of this Agreement, the Folsom Lake Bank Board has resolved to effect a termination of this Agreement in accordance with this Section 7.1(g) and includes the material terms and conditions of such Superior Proposal (including copies of the proposed by Parent documents and agreements to effect the Superior Proposal) and the identity of the person making such Superior Proposal, (ii) during such three five (35) Business Day periodbusiness day period (as it may be extended upon modification or amendment of the Acquisition Proposal as contemplated below), Folsom Lake Bank negotiates in good faith (including by making its officers, directors and its financial and legal advisors reasonably available to negotiate) with CVCY (to the extent CVCY wishes to negotiate) to enable CVCY to make an offer that (A) failure is at least as favorable to take the shareholders of Folsom Lake Bank so that such action Acquisition Proposal would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues cease to constitute a Superior Proposal (“Revised CVCY Proposal; ”), (iii) at the end of such five (5) business day period (as it may be extended upon modification or amendment of the Acquisition Proposal as contemplated below, or such earlier time that CVCY advises Folsom Lake Bank in writing it no longer wishes to negotiate to amend this Agreement), a majority of the entire Folsom Lake Bank Board, after taking into account the Revised CVCY Proposal, continues to believe (after consultation with its independent financial advisors and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal and, after consultation with its outside legal counsel, that failure to accept the Acquisition Proposal would or would be reasonably likely to result in a violation of its fiduciary duties to the shareholders of Folsom Lake Bank under applicable Law, provided, further that in the event of any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment revisions to the terms of an Acquisition Proposal that are material to such Competing Acquisition Proposal after the start of the five (whether or not in response to any changes proposed by Parent pursuant to clause (iii)5) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day business day period from the date of such notice during which the terms of clause (i) through immediately above, such revisions shall be deemed a new Acquisition Proposal and Folsom Lake Bank shall be required to deliver a new written notice as required by clause (ivi) immediately above to CVCY and to comply with the requirements of this Section 7.1(g) with respect to such new Acquisition Proposal, except, that the notice period of clause (i) immediately above shall apply mutatis mutandis be reduced to three (other than the number of 3) business days).

Superior Proposal. Notwithstanding anything to the contrary contained set forth in this AgreementSection 7.2, at any time prior to (but not after) the receipt of time the Company Stockholder ApprovalApproval is obtained, the Company Board (upon the recommendation of the Special Committee) may terminate this Agreement pursuant to Section 9.3(a) to enter into an Alternative Acquisition Agreement or any duly authorized committee thereof) may, make a Company Adverse Recommendation Change in response to the receipt of a bona fide written Competing an Acquisition 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: if (i) the Company Board Acquisition Proposal was not solicited in violation of the provisions of this Section 7.2 and (or any duly authorized committee thereofii) determines the Special Committee has determined in good faith, after consultation with its outside financial advisors advisor and outside legal counsel, that (A) failure to take such action would be reasonably likely to be inconsistent with its the directors’ fiduciary duties under applicable Law and (B) such Competing Acquisition Proposal constitutes a Superior Proposal; provided, however, that (iix) the Company provides Board (or any committee thereof, including the Special Committee) has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action (which notice shall include, to the extent not previously provided pursuant to Section 7.2(d), an unredacted copy of the Acquisition Proposal, an unredacted copy of the relevant proposed transaction agreements and a copy of any financing commitments relating thereto and a written summary of the material terms of any Superior Proposal not made in writing), (y) following the end of such notice period, the Special Committee shall have considered in good faith any proposed revisions to this Agreement proposed in writing by Parent, and shall have determined that the Acquisition Proposal would continue to constitute a Superior Proposal if such revisions were to be given effect, and (z) in the event of any material change to the material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (x) above and the notice period in clause (x) shall have recommenced and the condition in clause (y) shall have occurred again, except that the notice period shall be at least three (3) Business Days prior to effecting a Change of Company Recommendation of (rather than the Company Board’s intention to take such action, specifying the reasons therefor four (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior to effecting such Change of Company Recommendation, the Company shall, and shall cause its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (34) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Change of Company Recommendation, and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed Days otherwise contemplated by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)x) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of daysabove).

Superior Proposal. Notwithstanding anything to the contrary contained in this AgreementIf, at any time prior to the receipt Exclusivity Period, SELLER receives an Acquisition Proposal from any Qualified Purchaser(s) that the Board of the Company Stockholder Approval, the Company Board (or any duly authorized committee thereof) may, in response to the receipt Directors 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 or terminate this Agreement in accordance with Section 7.01(d) in order to cause the Company to enter into a binding and definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, in each case only if: (i) the Company Board (or any duly authorized committee thereof) determines PARENT concludes in good faith, after consultation with its outside financial advisors and outside legal counsel, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal faith constitutes a Superior Proposal, 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 Company provides Parent written notice at least three (3) Business Days prior Premises, that has been provided by the Qualified Purchaser in connection with the Superior Proposal that has not previously been provided to effecting a Change of Company Recommendation of the Company Board’s intention to take such actionBUYER, specifying the reasons therefor (a “Notice of Change of Recommendation”), which notice shall identify the person making such Competing Proposal, describe the terms and conditions of such Competing Proposal and include a copy of all definitive agreements and documentation in respect thereof (it being agreed that neither the delivery of the Notice of Change of Recommendation nor the public disclosure thereof shall constitute a Change of Company Recommendation), (iii) prior shall not enter into any confidentiality provisions restricting the provision of such materials to effecting such Change BUYER. Any materials, including a term sheet, a letter of Company Recommendationintent or definitive agreement, given to BUYER in connection with the Company shallSuperior Proposal, and (A) shall cause its Representatives tobe designated "Trade Secret" by SELLER, negotiate with Parent in good faith (B) shall be subject to the extent Parent desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement trade secret protocol established by SELLER attached hereto as would obviate the basis for a Change of Company RecommendationSchedule 6.a., and (iv) no earlier than the end of such three (3) Business Day period, the Company Board (or any duly authorized committee thereof) again determines in good faith, after consultation with its outside financial advisors and outside legal counsel and after considering any written, binding and irrevocable amendments to the terms and conditions of this Agreement proposed by Parent during such three (3) Business Day period, that (A) failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (B) such Competing Proposal continues to constitute a Superior Proposal; provided, that any change to the financial terms (including any change to the amount, form or mix of consideration payable) or other material amendment to the terms of such Competing Proposal (whether or not in response to any changes proposed by Parent pursuant to clause (iii)C) shall require a new Notice of Change of Recommendation and an additional three (3) Business Day period from be kept confidential by BUYER in accordance with the date of such notice during which the terms of clause (i) through (iv) shall apply mutatis mutandis (other than the number of days)Confidentiality Letter.