Common use of Board of Directors Recommendation Clause in Contracts

Board of Directors Recommendation. (a) In response to (i) the receipt of an Alternative Transaction Proposal which is determined by the Board of Directors of the Company to be a Superior Proposal or (ii) any material event, development, circumstance, occurrence or change in circumstances or facts (including any material change in probability or magnitude of circumstances), not related to an Alternative Transaction Proposal, and that first occurred following the execution of this Agreement that was neither known to nor reasonably foreseeable by the Company as of or prior to the date hereof, that materially improves the financial condition or results of operations of the Company (excluding the fact that the Company meets or exceeds any internal or published projections, forecasts or estimates of its revenue, earnings or other financial performance or results of operations for any period ending on or after the date hereof, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or any credit rating of the Company) (an “Intervening Event”), such Board of Directors may, after fully complying with Section 5.4(b) (A) withhold, withdraw or qualify (or amend or modify in a manner adverse to Parent) or publicly propose to withhold, withdraw or qualify (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or any committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement, or (B) recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any Superior Proposal (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “Change of Recommendation”), if the Board of Directors of the Company has concluded in good faith, after receipt of advice of its outside legal counsel, that, in light of such Superior Proposal or Intervening Event, as applicable, the failure of the Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its fiduciary obligations to the shareholders of the Company under applicable Law.

Board of Directors Recommendation. (a) In response to (i) the receipt of an Alternative Transaction Proposal which is determined by the Board of Directors of the Company to be a Superior Proposal or (ii) any material event, development, circumstance, occurrence or change in circumstances or facts (including any material change in probability or magnitude of circumstances), not related to an Alternative Transaction Proposal, and that first occurred following the execution of this Agreement that was neither known to nor reasonably foreseeable by the Company as of or prior to the date hereof, that materially improves the financial condition or results of operations of the Company (excluding the fact that the Company meets or exceeds any internal or published projections, forecasts or estimates of its revenue, earnings or other financial performance or results of operations for any period ending on or after the date hereof, or changes after the date of this Agreement in the market price or trading volume of the Company Common Stock or any credit rating of the Company) (an “"Intervening Event”"), such Board of Directors may, after fully complying with Section 5.4(b) (A) withhold, withdraw or qualify (or amend or modify in a manner adverse to Parent) or publicly propose to withhold, withdraw or qualify (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or any committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement, or (B) recommend, adopt or approve, or publicly propose to recommend, adopt or approve, any Superior Proposal (any of the foregoing actions, whether by a Board of Directors or a committee thereof, a “"Change of Recommendation”"), if the Board of Directors of the Company has concluded in good faith, after receipt of advice of its outside legal counsel, that, in light of such Superior Proposal or Intervening Event, as applicable, the failure of the Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its fiduciary obligations to the shareholders of the Company under applicable Law.

Board of Directors Recommendation. (a) In response to (i) the receipt of an Alternative Transaction Proposal which is determined by the The Company Board of Directors shall recommend that the Company’s Voting Members vote in favor of the Company to be a Superior Proposal or (ii) any material event, development, circumstance, occurrence or change in circumstances or facts (including any material change in probability or magnitude of circumstances), not related to an Alternative Transaction Proposal, adoption and that first occurred following the execution approval of this Agreement that was neither known to nor reasonably foreseeable by and approval of the Merger at the Company as of or prior Members’ Meeting. The Prospectus/Proxy Statement shall include a statement to the date hereof, that materially improves the financial condition or results of operations of the Company (excluding the fact effect that the Company meets or exceeds any internal or published projections, forecasts or estimates Board of its revenue, earnings or other financial performance or results Directors has recommended that the Company’s Voting Members vote in favor of operations for any period ending on or after the date hereof, or changes after the date adoption and approval of this Agreement in the market price or trading volume and approval of the Merger at the Company Common Stock or any credit rating of Members’ Meeting. Neither the Company) (an “Intervening Event”), such Company Board of Directors maynor any committee thereof shall withdraw, after fully complying with Section 5.4(b) (A) withholdamend or modify, withdraw or qualify (propose or resolve to withdraw, amend or modify in a manner adverse to Parent) or publicly propose to withhold, withdraw or qualify (or amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such the Company Board of Directors that the Company’s Voting Members vote in favor of the adoption and approval of this Agreement and the approval of the Merger. Notwithstanding the foregoing or anything in this Agreement to the contrary, in connection with a Superior Proposal, the Board of Directors of Company may, subject to Parent’s rights in Section 7.1(g), withdraw, modify or change its recommendation of this Agreement and the Merger and recommend such Superior Proposal, if it determines in good faith following consultation with outside legal counsel that failure to do so would be inconsistent with its fiduciary duties under applicable law; provided, that (x) the Board of Directors of Company may not withdraw, modify or change its recommendation or recommend such Superior Proposal until it has given Parent at least five (5) business days’ notice of its intention to take such action (and after giving Parent notice of the latest material terms, conditions of the Superior Proposal) and then taken into account any committee thereof amendment or modification to this Agreement or the transactions contemplated hereby proposed by Parent in writing, it being understood that any revised Superior Proposal shall require a separate notice period, and (y) if the Board of Directors of Company gives notice pursuant to clause (x) within five (5) business days of the date of the Company Members’ Meeting, the Company shall, subject to the requirements of applicable law, postpone the Company Members’ Meeting to a date and time to ensure that Parent has five (5) business days’ notice of any such proposed withdrawal, modification or change of recommendation prior to the Company Members’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Merger obligation of the Company to call, give notice of, convene and hold the Company Members’ Meeting shall not be limited or otherwise affected by the other transactions contemplated by this Agreementcommencement, disclosure, announcement or submission to it of any Acquisition Proposal, or (B) recommend, adopt or approve, or publicly propose to recommend, adopt or approve, by any Superior Proposal (any of change in the foregoing actions, whether recommendation by a Board of Directors or a committee thereof, a “Change of Recommendation”), if the Board of Directors of the Company has concluded in good faith, after receipt (or any committee thereof) of advice of its outside legal counsel, that, in light of such Superior Proposal this Agreement and the Merger or Intervening Event, as applicable, the failure of recommendation by the Board of Directors to effect a Change of Recommendation is reasonably likely to result in a breach of its fiduciary obligations to the shareholders of the Company under applicable Law(or any committee thereof) of an Acquisition Proposal or Superior Proposal.