Common use of Competing Proposal Clause in Contracts

Competing Proposal. Except for the transactions contemplated by this Agreement, until the earlier of the Effective Time or the date of termination of this Agreement in accordance with its terms, Company shall not, nor shall Company authorize, cause or encourage any of its directors, officers, agents, employees, consultants, affiliates, shareholders, attorneys, accountants, financial advisors or other representatives (collectively, "Representatives") to, directly or indirectly: (i) solicit, encourage, initiate, engage, respond to, continue or participate in any negotiations or discussions with respect to an offer or proposal (whether formal or informal, oral, written, or otherwise) to acquire all or a material portion of Company's stock or assets, whether by purchase of stock or assets, license, joint venture, merger, consolidation, reorganization or other form of business combination, or otherwise (but other than in connection with Company's Series C Preferred financing) (a "Competing Proposal"), (ii) intentionally disclose any heretofore nonpublic information or Intellectual Property Rights of Company, or intentionally afford access to the properties, books or records of Company, to any person or entity concerning Company for the purposes of considering or formulating a Competing Proposal, (iii) assist, facilitate or encourage any person or entity to make a Competing Proposal, (iv) agree to, enter into a contract regarding, approve, recommend or endorse any transaction involving a Competing Proposal, or (v) authorize or permit any of Company's Representatives to take any action within the scope of the immediately preceding clauses (i) through (iv). If Company or Company's Representatives become aware of a Competing Proposal or if any request for nonpublic information or Intellectual Property Rights relating to Company or for access to the properties, books or records of Company is made by any person or entity that has made a Competing Proposal or has advised Company that it may be considering making a Competing Proposal, Company or Company's Representatives shall promptly notify Parent of the known material details of such Competing Proposal or request (including the identity of the person or entity making such Competing Proposal or request, the terms thereof and the information requested thereby) and shall promptly provide Parent with a copy of any Competing Proposal or request that is made in writing and copies of all written correspondence relating thereto. Thereafter, as long as this Agreement is in effect, Company shall keep Parent apprised on a current basis of the status of any such Competing Proposal and of any modifications to the terms thereof. Company and Company's Representatives shall immediately cease and cause to be terminated all existing discussions or negotiations with any parties other than Parent conducted heretofore with respect to any Competing Proposal.

Competing Proposal. Except for (a) From the transactions contemplated by this Agreement, date hereof until the earlier of the Effective Time Date or the date of termination of this Agreement in accordance with its terms, the Company shall not, nor shall Company authorize, cause or encourage it permit any of its Affiliates or Subsidiaries to, nor shall it authorize or permit any of its or their respective directors, officers, agents, employees, consultantsadvisors, affiliates, shareholders, attorneys, accountants, financial advisors representatives or other representatives agents (collectively, the "Company Representatives") to), to directly or indirectly: , (i) solicit, encouragefacilitate, initiate, engageentertain, respond toencourage or take any action to solicit, continue facilitate, initiate, entertain or encourage, any inquiries or communications regarding or the making of any proposal or offer that constitutes or may constitute a Competing Proposal (as defined herein) or (ii) participate or engage in any discussions or negotiations or discussions with respect to an offer or proposal (whether formal or informal, oral, writtenwith, or otherwiseprovide any information to or take any other action with the intent to facilitate the efforts of, any person concerning any possible Competing Proposal or any inquiry or communication which might reasonably be expected to result in a Competing Proposal. For purposes of this Agreement, the term "Competing Proposal" shall mean any inquiry, proposal or offer from any person (other than Parent, Acquiror or any of their Affiliates) relating to acquire all or a material portion (i) any take-over bid, amalgamation, plan of Company's stock or assets, whether by purchase of stock or assets, license, joint venturearrangement, merger, consolidation, reorganization or other form of direct or indirect business combination, recapitalization, liquidation, winding-up of, or otherwise similar transaction, involving the Company or any Material Subsidiary (but other than in connection with Company's Series C Preferred financing) (a "Competing Proposal"as defined herein), (ii) intentionally disclose the issuance or acquisition of shares of capital stock or other equity securities of the Company or any heretofore nonpublic information Material Subsidiary representing 15% or Intellectual Property Rights more of Company, the outstanding capital stock or intentionally afford access to voting power of the properties, books Company or records of Company, to any person or entity concerning Company for the purposes of considering or formulating a Competing Proposalsuch Material Subsidiary, (iii) assistany tender, facilitate exchange offer or encourage other offer or bid that if consummated would result in any person person, together with all Affiliates thereof, beneficially owning shares of capital stock or entity to make a Competing Proposalother equity securities of the Company or any Material Subsidiary representing 15% or more of the outstanding capital stock or voting power of the Company or such Material Subsidiary, (iv) agree tothe sale, enter into lease, exchange, license (whether exclusive or not), or other disposition of a contract regarding, approve, recommend substantial portion of the Intellectual Property or endorse a substantial portion of the business or other assets of the Company or any transaction involving a Competing ProposalMaterial Subsidiary, or (v) authorize any other transaction, the consummation of which could reasonably be expected to impede, interfere with, prevent or permit any of Company's Representatives to take any action within materially delay the scope consummation of the immediately preceding clauses (i) through (iv). If Company transactions contemplated hereby or Company's Representatives become aware of a Competing Proposal which would reasonably be expected to diminish significantly the benefits to Parent or if any request for nonpublic information or Intellectual Property Rights relating to Company or for access to the properties, books or records of Company is made by any person or entity that has made a Competing Proposal or has advised Company that it may be considering making a Competing Proposal, Company or Company's Representatives shall promptly notify Parent its Affiliates of the known material details of such Competing Proposal or request (including the identity of the person or entity making such Competing Proposal or request, the terms thereof and the information requested thereby) and shall promptly provide Parent with a copy of any Competing Proposal or request that is made in writing and copies of all written correspondence relating theretotransactions contemplated hereby. Thereafter, as long as this Agreement is in effect, The Company shall keep Parent apprised on a current basis of the status of any such Competing Proposal and of any modifications to the terms thereof. Company and Company's Representatives shall immediately cease and cause to be terminated terminated, and shall cause its Subsidiaries and all Company Representatives to immediately terminate and cause to be terminated, all existing discussions or negotiations with any parties other than Parent persons conducted heretofore with respect to, or that could reasonably be expected to any lead to, a Competing Proposal. The Company shall promptly notify each Company Representative of its obligations under this Section 7.1. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth above by any Affiliate or Subsidiary of the Company or any Company Representative, whether or not such person is purporting to act on behalf of the Company, shall be deemed to be a breach of this Section 7.1(a) by the Company.

Competing Proposal. Except for (a) Notwithstanding any other provision of this Agreement to the transactions contemplated by this Agreementcontrary, until during the earlier of the Effective Time or period beginning on the date of termination this Agreement and continuing until 11:59 p.m. New York City time on the date that is (x) thirty (30) days following the date of this Agreement (the “No-Shop Period Start Date”) for any Person or “group” who is not an Excluded Party, or (y) in respect of any Excluded Party, five (5) days after the No-Shop Period Start Date (the “Cut-Off Date”), as applicable, the Company, its Subsidiaries and its Subsidiaries’ Representatives (including any investment banker, attorney or accountant retained by any Group Company) shall have the right (acting under the direction of the Special Committee) to directly or indirectly (i) solicit, initiate, induce or encourage any Competing Proposal, or facilitate the making, submission or announcement of one or more Competing Proposals from any Person or its Representatives, or encourage, facilitate or assist, any proposal, inquiry or offer that could reasonably be expected to lead to a Competing Proposal, including by furnishing to any Person or its Representatives any non-public information relating to the Company or any of its Subsidiaries or by affording to any Person or its Representatives access to the business, properties, assets, books, records or other non-public information of the Company or any of its Subsidiaries, in each case subject to the entry into, and in accordance with, an Acceptable Confidentiality Agreement; provided, that the Company shall promptly (and in any event within two (2) Business Days) provide to Parent any information concerning the Company or its Subsidiaries that it has provided to any Person or its Representatives which was not previously provided to Parent, (ii) enter into, participate in or engage in discussions or negotiations with any Person or its termsRepresentatives with respect to a Competing Proposal or any proposal that could reasonably be expected to lead to a Competing Proposal, and (iii) otherwise cooperate with, assist, participate in or facilitate any Competing Proposal or any proposal that could reasonably be expected to lead to a Competing Proposal. Within forty-eight (48) hours following the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Date), the Company shall notify Parent in writing of the material terms and conditions of any proposal or offer regarding a Competing Proposal (including any amendments or modifications thereof) received from any Person or its Representatives and the identity thereof (including the identity of any Excluded Party). Except as otherwise expressly provided in this Section 6.04, the Company shall (x) immediately cease any activities permitted by the preceding sentences and any discussions or negotiations with any Person (other than Parent, Merger Sub or their respective Representatives) that are ongoing as of the No-Shop Period Start Date and that relate, or may reasonably be expected to lead, to a Competing Transaction, and (y) promptly request each Person (other than Parent, Merger Sub or their respective Representatives) that has heretofore executed a standstill, confidentiality or similar agreement in connection with such Person’s consideration of a Competing Transaction to return (or if permitted by the applicable agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable agreement. (b) Immediately from the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Date), the Company shall not, nor shall Company authorize, cause or encourage it permit any of its directorsSubsidiaries to, officers, agents, employees, consultants, affiliates, shareholders, attorneys, accountants, financial advisors nor shall it authorize or other representatives (collectively, "Representatives") permit any of its or their Representatives to, directly or indirectly: , (i) solicit, encourageinitiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), initiateor take any other action designed to facilitate, engageany inquiries or the making of any proposal which constitutes, respond or may reasonably be expected to lead to, continue or participate in any negotiations or discussions with respect to an offer or proposal (whether formal or informal, oral, written, or otherwise) to acquire all or a material portion of Company's stock or assets, whether by purchase of stock or assets, license, joint venture, merger, consolidation, reorganization or other form of business combination, or otherwise (but other than in connection with Company's Series C Preferred financing) (a "Competing Proposal"), (ii) intentionally disclose enter into, maintain or continue discussions or negotiations with, or provide any heretofore nonpublic information or Intellectual Property Rights of Companyconcerning any Group Company to, or intentionally afford access to the properties, books or records of Company, to any person in furtherance of such inquiries or entity concerning Company with the intent to induce or obtain such a proposal or offer for the purposes of considering or formulating a Competing ProposalTransaction, (iii) assistagree to, facilitate approve, endorse, recommend or encourage consummate any person Competing Transaction or entity to make a Competing Proposalenter into any Alternative Acquisition Agreement (as defined below), (iv) agree togrant any waiver, enter into a contract regardingamendment or release under any standstill, approve, recommend confidentiality or endorse any transaction involving a Competing Proposalsimilar agreement or Takeover Statutes, or (v) authorize or permit any of Company's the Representatives of the Company or any of its Subsidiaries to take any action within the scope of the immediately preceding set forth in clauses (i) through – (iv) of this Section 6.04(b). If Company or Company's Representatives become aware ; provided, that if, following the receipt of a Competing Superior Proposal or if any request for nonpublic information or Intellectual Property Rights relating a proposal which is reasonably expected to Company or for access lead to a Superior Proposal that in either case was made after the No-Shop Period Start Date (or, with respect to an Excluded Party, the Cut-Off Date) and prior to the propertiesreceipt of the Requisite Company Vote, books or records the Company Board has determined, in its good faith judgment acting at the recommendation of the Special Committee (after consultation with its independent financial advisor and outside legal counsel), that a failure to do so could be inconsistent with its fiduciary duties under applicable Law, the Company is made by any person or entity may, in response to such proposal, (A) request information from the Person making such proposal for the sole purpose of the Company Board informing itself about the proposal that has been made a Competing and the Person that made it, (B) furnish information with respect to the Company to the Person making such Superior Proposal or has advised pursuant to an Acceptable Confidentiality Agreement, and (C) participate in negotiations with such party regarding such proposal; provided, further, that as soon as practical (and in any event within twenty-four (24) hours) the Company that it may be considering making a Competing Proposal, Company or Company's Representatives shall promptly notify Parent in writing of the known material details terms and conditions of any proposal or offer regarding such Competing Proposal proposal (including any amendments or request modifications thereof) and the identity thereof (including the identity of any Excluded Party). (c) Except as expressly permitted in this Section 6.04, neither the person Company Board nor any committee thereof shall (i) change, withhold, withdraw, qualify or entity making modify, or propose publicly to change, withhold, withdraw, qualify or modify, in a manner adverse to Parent, Merger Sub or the Company Recommendation, (ii) fail to include the Company Recommendation in the Proxy Statement, (iii) adopt, approve, determine to be advisable, or recommend, or propose publicly to adopt, approve, determine to be advisable, or recommend, any Competing Proposal, (iv) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Proposal Transaction, (v) fail to publicly reaffirm the Company Recommendation following any Competing Transaction having been publicly made, proposed or requestcommunicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing, or (vi) cause the terms thereof and the information requested therebyCompany to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Alternative Acquisition Agreement”) and shall promptly provide Parent with a copy of related to any Competing Proposal (other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(a) or request Section 6.04(b)) (any of the foregoing, a “Change in Company Recommendation”). (d) Notwithstanding anything to the contrary set forth in Section 6.04(c), if and only if the Company Board determines in good faith acting at the recommendation of the Special Committee (after consultation with its independent financial advisor and outside legal counsel), in response to a Superior Proposal that is was made in writing compliance with this Section 6.04 after the date hereof and copies prior to the receipt of all written correspondence relating thereto. Thereafterthe Requisite Company Vote, as long as that the failure to do so could be inconsistent with its fiduciary duties under applicable Law, the Company Board (acting at the recommendation of the Special Committee) or the Special Committee may (x) make a Change in the Company Recommendation, and (y) authorize the Company to terminate this Agreement is in effectaccordance with ‎Section 8.03(c), but only (i) if the Company shall keep have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer in all material respects; (ii) after (A) providing at least five (5) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent apprised on (a current basis “Notice of Superior Proposal”) advising Parent that the Company Board has received a proposal or offer that constitutes a Superior Proposal, specifying the material terms and conditions of such proposal or offer, identifying the person making such proposal or offer and indicating that the Company Board intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing Documents, so that such proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Financing and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that any material modifications to such proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal to which the requirements of this Section 6.04(d) apply and the Company shall be required to deliver a new Notice of Superior Proposal to Parent; provided, further, that with respect to such new Notice of Superior Proposal to Parent, the Superior Proposal Notice Period shall be deemed to be a three (3)-Business-Day-period rather than the five (5)-Business-Day-period first described above; and (D) following the end of such five (5)-Business-Day-period or three (3)-Business-Day-period (as applicable), the Company Board shall have determined, in its good faith judgment upon the recommendation of the status Special Committee (after consultation with its independent financial advisor and outside legal counsel), that taking into account any changes to this Agreement and the Financing Documents proposed by P▇▇▇▇▇ and Merger Sub in response to the Notice of any Superior Proposal or otherwise, that such proposal or offer giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and the failure to take the actions specified in clauses (x) to (y) above could still be inconsistent with its fiduciary duties under applicable Law. (e) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Company Vote is obtained, the Company Board, acting at the recommendation of the Special Committee, or the Special Committee, may make a Change in the Company Recommendation for a reason unrelated to a Competing Proposal if and only if (i) the Company Board determines, acting at the recommendation of any modifications the Special Committee, in good faith after consultation with its independent financial advisor and outside legal counsel that, in light of an Intervening Event, failure to make a Change in the Company Recommendation could be inconsistent with its fiduciary duties under applicable Law; (ii) the Company notifies Parent in writing, at least five (5) Business Days in advance, that it intends to effect a Change in the Company Recommendation in light of such Intervening Event, which notice shall specify the nature and circumstances of the Intervening Event in reasonable detail; (iii) after providing such notice and prior to making such Change in the Company Recommendation in connection with such Intervening Event, the Company (A) shall, and shall cause its Representative to, negotiate in good faith with Parent during such five (5)-Business-Day-period (to the extent that Parent desires to negotiate) to make such revisions to the terms thereof. of this Agreement and the Financing Documents as would permit the Company Board not to effect a Change in the Company Recommendation in light of such Intervening Event, and (B) shall permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Financing Documents and any adjustments with respect thereto (to the extent Parent desires to make such presentation); and (iv) the Company Board shall have considered in good faith any changes to this Agreement and the Financing Documents and shall have again determined, acting at the recommendation of the Special Committee, in good faith after consultation with its independent financial advisor and outside legal counsel, taking into account any changes to this Agreement and the Financing Documents proposed by P▇▇▇▇▇ and Merger Sub in response to the aforementioned notice, that it could continue to be inconsistent with the Company Board’s fiduciary duties under applicable Law not to effect the Change in the Company Recommendation in light of the Intervening Event. (f) Nothing contained in this ‎Section 6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law with regard to a Competing Transaction, including (A) disclosure of factual information regarding the business, financial condition or results of operations of the Company and Company's Representatives (B) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, that any such disclosure pursuant to this clause (B) (other than a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board or the Special Committee, as applicable, has received and is currently evaluating such Competing Transaction) that does not include an express rejection of any applicable Competing Transaction or an express reaffirmation of its recommendation in favor of the Transactions shall immediately cease and cause be deemed to be terminated all existing discussions a Change in the Company Recommendation, or negotiations with (ii) making any parties other than Parent conducted heretofore with respect to any Competing Proposal“stop-look-and-listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act.

Competing Proposal. Except for the transactions contemplated by this Agreement, until the earlier of the Effective Time or (a) From and after the date of this Agreement until the Closing or termination of this Agreement in accordance with its termspursuant to Article 7, Company shall the Seller will not, nor shall Company authorize, cause will it authorize or encourage permit any of its officers, directors, officersAffiliates, agentsshareholders or employees or any investment banker, employees, consultants, affiliates, shareholders, attorneys, accountants, financial advisors attorney or other representatives advisor or representative retained by it (collectively, "all of the foregoing collectively being the “Seller Representatives"”) to, directly or indirectly: , (i) solicit, initiate, seek, entertain, encourage, initiatefacilitate, engagesupport or induce the making, respond submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, continue or participate in any negotiations or discussions with respect to an offer or proposal (whether formal or informal, oral, written, or otherwise) to acquire all or a material portion of Company's stock or assets, whether by purchase of stock or assets, license, joint venture, merger, consolidation, reorganization or other form of business combination, or otherwise (but other than in connection with Company's Series C Preferred financing) (a "Competing Proposal"), (ii) intentionally disclose enter into, participate in, maintain or continue any heretofore communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any Person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Competing Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Competing Proposal, (iv) enter into any letter of intent or any other contract contemplating or otherwise relating to any Competing Proposal, or (v) submit any Competing Proposal to the vote of any security holders of the Seller; provided, that nothing contained herein to the contrary shall interfere with or otherwise prohibit the Selling Parties from complying with their obligations under applicable Law with respect to unsolicited tender or exchange offers for the securities of the Seller. The Seller will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Competing Proposal. If any Seller Representative, whether in his or her capacity as such or in any other capacity, takes any action that the Seller is obligated pursuant to this Section 5.20 to cause such Seller Representative not to take, then the Seller shall be deemed for all purposes of this Agreement to have breached this Section 5.20. (b) The Seller shall immediately notify the Buyer orally and in writing after receipt by the Seller (or, to the Knowledge of the Seller, by any of the Seller Representatives), of (i) any Competing Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, a Competing Proposal, (iii) any other notice that any Person is considering making an Competing Proposal, or (iv) any request for nonpublic information relating to the Seller or Intellectual Property Rights of Company, or intentionally afford for access to any of the properties, books or records of Companythe Seller by any Person or Persons other than the Buyer. Such notice shall describe (1) the material terms and conditions of such Competing Proposal, inquiry, expression of interest, proposal, offer, notice or request, and (2) the identity of the Person making any such Competing Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Seller shall keep the Buyer fully informed of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to the Buyer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any person amendments, correspondence and communications related thereto, if it is in writing, or entity concerning Company for a reasonable written summary thereof, if it is not in writing. The Seller shall provide the purposes Buyer with 48 hours prior notice of considering or formulating a any meeting of its board of directors at which the board of directors is reasonably expected to discuss any Competing Proposal. (c) If at any time following the date of this Agreement and prior to the receipt of Seller Shareholder Approval (i) the Seller has received an unsolicited bona fide written Competing Proposal, (ii) the board of directors of the Seller determines in good faith, after consultation with its outside financial and legal advisors, that such Competing Proposal constitutes, or would reasonably be expect to lead to, a Superior Proposal and (iii) assistthe board of directors of the Seller determines in good faith, facilitate after consultation with its outside legal advisors, that failure to take such action would breach the directors’ fiduciary duties under applicable Laws, then the Seller may (x) furnish non-public information to such third party that has made the bona fide written Competing Proposal and (y) engage in discussions or encourage negotiations with such third party with respect to such bona fide Competing Proposal; provided, that (A) the Seller shall have not violated any person of the restriction contained in Section 5.20(a) above, (B) prior to so furnishing such information the Seller receives from the third party an executed confidentiality agreement, which agreement shall not include any provision calling for any exclusive right to negotiate with such Person or entity having the purported effect of restricting the Seller from satisfying its obligations under this Agreement, and (C) any non-public information concerning the Seller or made available to make the Buyer, be provided or made available to the Buyer at substantially the same time that such non-public information is provided to made available to such third party. Prior to taking of any actions referred to in this Section 5.20(c), the Seller shall notify the Buyer orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section, together with a copy of the Competing Proposal submitted by such third party. (d) The board of directors of the Seller shall not be entitled to accept a Superior Proposal as provided in Section 5.20(c) unless (i) the Seller has not breached this Section or Section 5.19 as it relates to such Superior Proposal, (ivii) agree to, enter into the Seller has provided written notice (a contract regarding, approve, recommend or endorse any transaction involving a Competing “Notice of Superior Proposal, or (v”) authorize or permit any of Company's Representatives to the Buyer that the Seller intends to take any action within the scope such action, which notice includes a copy of the immediately preceding clauses (i) through (iv). If Company or Company's Representatives become aware of a Competing Superior Proposal or if any request for nonpublic information or Intellectual Property Rights relating to Company or for access to that is the properties, books or records of Company is made by any person or entity that has made a Competing Proposal or has advised Company that it may be considering making a Competing Proposal, Company or Company's Representatives shall promptly notify Parent of the known material details Basis of such Competing Proposal or request action (including the identity of the person third party making the Superior Proposal and any equity or entity making debt financing materials related thereto, if any), (iii) during the five (5) business day period following the Buyer’s receipt of the Notice of Superior Proposal, the Seller shall, and shall cause its representatives to, negotiate with the Buyer in good faith (to the extent the Buyer desires to negotiate) to make such Competing adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal, and (iv) following the end of the five (5) business day period, the board of directors of the Seller shall have determined in good faith, after consultation with its outside financial and legal advisors, taking into account any changes to this Agreement proposed by the Buyer in response to the Notice of Superior Proposal or requestotherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any amendment to the financial terms thereof or other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the information requested thereby) and Seller shall promptly provide Parent be required to comply again with a copy the requirements of any Competing Proposal or request that is made in writing and copies of all written correspondence relating thereto. Thereafter, as long as this Agreement is in effect, Company shall keep Parent apprised on a current basis of the status of any such Competing Proposal and of any modifications to the terms thereof. Company and Company's Representatives shall immediately cease and cause to be terminated all existing discussions or negotiations with any parties other than Parent conducted heretofore with respect to any Competing ProposalSection 5.20.

Competing Proposal. Except for (a) From the transactions contemplated by date of this Agreement, agreement until the earlier of Stage 2 Completion and the Effective Time Cut Off Date (Exclusivity Period), the Company covenants and agrees that as a material inducement for the Subscriber to incur time and expense in performing its due diligence and other reviews, commencing preparation of definitive documentation and entering into definitive documentation, the Company and its officers, directors, employees, advisers (including legal and financial advisers), agents or other authorised representatives (Related Persons) shall not (directly or indirectly), without the date express written consent of termination the Subscriber (which may be withheld at the Subscriber’s discretion): (1) solicit, invite, encourage or initiate, any offer, proposal, discussion, negotiation, expression of this Agreement interest or inquiry by any person in accordance with relation to, or which would reasonably be expected to encourage or lead to the making of any transaction in respect of a Competing Proposal; or (2) provide any non-public information to any party (other than the Subscriber and its termsaffiliates and representatives) relating to, or which could be reasonably be expected to lead to or encourage, a Competing Proposal. (b) If the Company shall not, nor shall Company authorize, cause or encourage any of its directors, officers, agents, employees, consultants, affiliates, shareholders, attorneys, accountants, financial advisors or other representatives (collectively, "Representatives") to, directly or indirectly: (i) solicit, encourage, initiate, engage, respond to, continue or participate in any negotiations or discussions with respect to an offer or Related Persons receives a proposal (whether formal or informal, oral, written, or otherwise) to acquire all or a material portion of Company's stock or assets, whether by purchase of stock or assets, license, joint venture, merger, consolidation, reorganization or other form of business combination, or otherwise (but other than in connection with Company's Series C Preferred financing) (a "an actual, proposed or potential Competing Proposal"), (ii) intentionally disclose any heretofore nonpublic information or Intellectual Property Rights of Company, or intentionally afford access becomes aware of any negotiation, discussion or approach (or any attempt to the properties, books initiate any negotiation or records of Company, discussion) relating to any person or entity concerning Company for the purposes of considering or formulating a Competing Proposal, (iii) assistthe Company and its officers, facilitate or encourage any person or entity directors and other representatives shall immediately notify the Subscriber and provide to make a Competing Proposal, (iv) agree to, enter into a contract regarding, approve, recommend or endorse any transaction involving a Competing Proposal, or (v) authorize or permit any of Company's Representatives to take any action within the scope Subscriber all material terms of the immediately preceding clauses (i) through (iv). If Company actual, proposed or Company's Representatives become aware of a potential Competing Proposal or if any request for nonpublic information or Intellectual Property Rights relating to Company or for access to the properties, books or records of Company is made by any person or entity that has made a Competing Proposal or has advised Company that it may be considering making a Competing Proposal, Company or Company's Representatives shall promptly notify Parent of the known material details of such Competing Proposal or request (including the identity of the person party or entity making such parties associated with the Competing Proposal or request, the terms thereof and the information requested therebyProposal). (c) and shall promptly provide Parent with a copy of any Competing Proposal or request that is made in writing and copies of all written correspondence relating thereto. Thereafter, as long as this Agreement is in effect, Company shall keep Parent apprised on a current basis of the status of any such Competing Proposal and of any modifications to the terms thereof. The Company and Company's Representatives shall each Related Person must not participate in, and must immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties other than Parent conducted heretofore prior to the date of this agreement with respect to to, any Competing Proposal, or any proposal which would reasonably be expected to encourage or lead to the making of an actual, proposed or potential Competing Proposal. (d) Without limiting the foregoing, any violation of the restrictions set out in this clause 9.1 by any Related Person will be deemed to be a breach of this agreement by the Company.