Common use of Change in Recommendation Clause in Contracts

Change in Recommendation. Except as set forth in this Section 6.05(c), the Company Board and the Independent Committee shall not (i) withdraw, or modify or change in a manner adverse to Parent and Merger Co, the approval or recommendation of this Agreement or the Merger by the Company Board (or any committee thereof); (ii) approve, adopt or recommend any Acquisition Proposal; or (iii) approve or recommend, or allow the Company or any Subsidiary to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to, or that is reasonably expected to result in, any Acquisition Proposal (other than a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, (x) in response to the receipt of an unsolicited Acquisition Proposal, if the Company Board (or any committee thereof) (A) determines in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such action, and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent to make such an offer, and (3), in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties under applicable law, then the Company Board may withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders of the Company or does not believe that the Merger and the Agreement are in the best interests of the stockholders of the Company shall be deemed for all purposes of this Agreement to be a Change in Board Recommendation.

Change in Recommendation. Except as set forth below, neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in this Section 6.05(cany manner adverse to the Purchaser), or propose publicly to withdraw (or modify in any manner adverse to the Purchaser), the Company Recommendation or any other approval, recommendation or declaration of advisability by the Board and of Directors of the Independent Committee shall not Company or any such committee thereof with respect to this Agreement or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Acquisition Proposal (any action in this clause (i) withdraw, being referred to as a “Adverse Recommendation Change”) or modify or change in a manner adverse to Parent and Merger Co, the approval or recommendation of this Agreement or the Merger by the Company Board (or any committee thereof); (ii) approve, adopt recommend or declare advisable, or propose publicly to approve, recommend any Acquisition Proposal; or (iii) approve or recommenddeclare advisable, or allow the Company Company, the Bank, or any Subsidiary of their Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement with respect or arrangement (an “Acquisition Agreement”) constituting or related to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to result incause, any Acquisition Proposal the Company or the Bank to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the transactions contemplated by this Agreement, or requiring, or reasonably expected to cause, the Company or the Bank to fail to comply with this Agreement (other than a confidentiality agreement expressly permitted by referred to in Section 6.05(b3.4(a)). Notwithstanding the foregoing, (x) in response at any time prior to obtaining the receipt approval of an unsolicited Acquisition the Shareholder Proposal, the Board of Directors of the Company may make an Adverse Recommendation Change in favor of a Superior Proposal if the Board of Directors of the Company Board (or any committee thereof) (A) determines in good faith (after consultation with its independent outside counsel and a financial advisoradvisor of nationally recognized reputation) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required the failure to do so in order to comply with would be a breach of its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, Law; provided, however, that (1) the Company shall have first provided at least three (3) not be entitled to exercise its right to make an Adverse Recommendation Change until after the second Business Days’ prior Day following the Purchaser’s receipt of written notice to Parent (a “Notice of its intent Recommendation Change”) from the Company advising the Purchaser that the Board of Directors of the Company intends to take such action, action and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent to make such an offer, and (3), in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including specifying the reasons therefor, including the terms and consultation with its independent financial advisor and upon conditions of the advice Superior Proposal that is the basis of its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties under applicable law, then the Company Board may withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any proposed action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders Directors of the Company or does not believe (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change and a new two business-day period). In determining whether to make an Adverse Recommendation Change, the Merger and the Agreement are in the best interests Board of the stockholders Directors of the Company shall be deemed for all purposes take into account any changes to the terms of this Agreement proposed by the Purchaser in response to be a Notice of Recommendation Change in Board Recommendationor otherwise.

Change in Recommendation. Except as set forth below, neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in this Section 6.05(cany manner adverse to the Purchaser), or propose publicly to withdraw (or modify in any manner adverse to the Purchaser), the Company Recommendation or any other approval, recommendation or declaration of advisability by the Board and of Directors of the Independent Committee shall not Company or any such committee thereof with respect to this Agreement or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Acquisition Proposal (any action in this clause (i) withdraw, being referred to as a “Adverse Recommendation Change”) or modify or change in a manner adverse to Parent and Merger Co, the approval or recommendation of this Agreement or the Merger by the Company Board (or any committee thereof); (ii) approve, adopt recommend or declare advisable, or propose publicly to approve, recommend any Acquisition Proposal; or (iii) approve or recommenddeclare advisable, or allow the Company Company, the Bank, or any Subsidiary of their Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement with respect or arrangement (an “Acquisition Agreement”) constituting or related to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal, or requiring, or reasonably expected to result incause, any Acquisition Proposal the Company or the Bank to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the transactions contemplated by this Agreement, or requiring, or reasonably expected to cause, the Company or the Bank to fail to comply with this Agreement (other than a confidentiality agreement expressly permitted by referred to in Section 6.05(b3.4(a)). Notwithstanding the foregoing, at any time prior to obtaining the approval of the Shareholder Proposal (xother than the proposal set forth in clause (1)(iii) of the definition of “Shareholder Proposal”), the Board of Directors of the Company may make an Adverse Recommendation Change in response to the receipt favor of an unsolicited Acquisition Proposal, a Superior Proposal if the Board of Directors of the Company Board (or any committee thereof) (A) determines in good faith (after consultation with its independent outside counsel and a financial advisoradvisor of nationally recognized reputation) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required the failure to do so in order to comply with would be a breach of its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, Law; provided, however, that (1) the Company shall have first provided at least three (3) not be entitled to exercise its right to make an Adverse Recommendation Change until after the second Business Days’ prior Day following the Purchaser’s receipt of written notice to Parent (a “Notice of its intent Recommendation Change”) from the Company advising the Purchaser that the Board of Directors of the Company intends to take such action, action and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent to make such an offer, and (3), in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including specifying the reasons therefor, including the terms and consultation with its independent financial advisor and upon conditions of the advice Superior Proposal that is the basis of its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties under applicable law, then the Company Board may withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any proposed action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders Directors of the Company or does not believe (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Recommendation Change and a new two business-day period). In determining whether to make an Adverse Recommendation Change, the Merger and the Agreement are in the best interests Board of the stockholders Directors of the Company shall be deemed for all purposes take into account any changes to the terms of this Agreement proposed by the Purchaser in response to be a Notice of Recommendation Change in Board Recommendationor otherwise.

Change in Recommendation. Except as set forth in this Section 6.05(c)Subject to certain exceptions summarized below, the Company NSH Board and the Independent Committee shall not (i) may not: • withdraw, or modify or change qualify, or propose publicly to withdraw, modify or qualify in a manner adverse to Parent and Merger Cothe Partnership, its recommendationto the approval or recommendation of this Agreement or the Merger by the Company Board (or any committee thereof)NSH unitholders; (ii) approve, adopt or recommend any Acquisition Proposal; or (iii) • approve or recommend, or publicly propose to approve or recommend, any acquisition proposal; • fail to include the NSH recommendation in the proxy statement; • if any acquisition proposal has been made public, fail to issue a press release recommending against such acquisition proposal and reaffirming NSH’s recommendation, if requested by the Partnership in writing, within the earlier of (1) ten business days of such written request, and (2) two business days before the NSH unitholder meeting; • resolve, publicly propose or agree to do any of the foregoing; or • except for a confidentiality agreement, approve, adopt or recommend, or publicly propose to approve, adopt or recommend, or allow the Company NSH or any Subsidiary of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement agreement, option agreement, joint venture agreement, partnership agreement, or other similar agreement contract or any tender or exchange offer providing for, with respect to, or that is reasonably expected to result inin connection with, any Acquisition Proposal (other than acquisition proposal. However, at any time before the NSH unitholder approval is obtained, the NSH Board may terminate the merger agreement in order to accept a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, superior proposal or make a change in its recommendation (x) in response to the following receipt of an unsolicited Acquisition Proposal, if acquisition proposal that did not result from an intentional and material breach of the Company merger agreement and that the NSH Board (or any committee thereof) (A) determines has concluded in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (faith, after consultation with its outside legal counselcounsel and financial advisors, constitutes a superior proposal or (y) that it is required solely in response to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such actionan intervening event, and Parent does not makein each case referred to in clauses (x) and (y) above, after being provided with reasonable opportunity to negotiate with if the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company NSH Board determines, has concluded in good faith (faith, after consultation with its independent outside legal counsel and financial advisor and legal counsel)advisors, is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent that failure to make such an offer, and (3), a change in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall its recommendation would be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so in order to comply inconsistent with its fiduciary duties under applicable law, then as modified by NSH limited liability company agreement. The NSH Board will not be entitled to change its recommendation until after three business days following the Company Partnership’s, the Partnership Board’s and the Partnership Conflicts Committee’s receipt of written notice from NSH advising that the NSH Board may withdrawintends to take such action and the reasons for doing so, including, if applicable, the terms and conditions of any superior proposal that is the basis of the proposed action and the identity of the person making the proposal and contemporaneously providing a copy of all relevant proposed transaction documents for such superior proposal (it being understood and agreed that any amendment to the terms of any such superior proposal shall require a new notice of proposed recommendation change and an Table of Contents additional three business day period). After providing such notice and prior to effecting such change in recommendation: • NSH must, to the extent requested by the Partnership be available to meet and engage in good faith negotiations, during such threebusiness day period, with the Partnership and its representatives to modify the merger agreement; and • in determining whether to make a change in recommendation, the NSH Board must take into account any agreed modifications to themerger agreement. NSH must also as promptly as practicable (and in any event within 48 hours after receipt) advise the Partnership orally and in writing of any acquisition proposal and the material terms and conditions of any such acquisition proposal (including any changes thereto) and identify the person making any such acquisition proposal. NSH must keep the Partnership informed on a reasonably current basis of material developments to the status and details (including any material amendments to the terms thereof) with respect to any such acquisition proposal. Takeover Laws Neither NSH nor the Partnership will take any action that would cause the transactions contemplated by the merger agreement to be subject to requirements imposed by any takeover laws. No Rights Triggered Each of NSH and the Partnership will take all steps necessary to ensure that the entering into of the merger agreement and the consummation of the transactions contemplated thereby will not result in the grant of any rights relating to equity securities of such party to any person, in the case of NSH, under the NSH limited liability company agreement, and, in the case of the Partnership, under the partnership agreement, or modify under any material agreement to which it or change in any of its subsidiaries is a manner adverse party. New Common Units Listed The Partnership will use its reasonable best efforts to Parent and Merger Colist, on the NYSE, prior to the closing of the merger, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”)new common units to be issued as merger consideration. Any action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders of the Company or does not believe that the Merger Third-Party Approvals NSH and the Agreement are in Partnership and their respective subsidiaries will cooperate and use their reasonable best efforts to prepare all documentation, to effect all filings, to obtain and comply with all permits, consents, approvals and authorizations of all third parties and all regulatory approvals necessary to consummate the best interests of merger and to cause the stockholders of amended and restated partnership agreement and the Company shall be deemed for all purposes of this Agreement NuStar GP amended and restated company agreement to be a Change in Board Recommendationeffective as expeditiously as practicable.

Change in Recommendation. Except as set forth in this Section 6.05(c)Subject to certain exceptions summarized below, the Company NSH Board and the Independent Committee shall not (i) may not: • withdraw, or modify or change qualify, or propose publicly to withdraw, modify or qualify in a manner adverse to Parent and Merger Cothe Partnership, its recommendation to the approval or recommendation of this Agreement or the Merger by the Company Board (or any committee thereof)NSH unitholders; (ii) approve, adopt or recommend any Acquisition Proposal; or (iii) • approve or recommend, or publicly propose to approve or recommend, any acquisition proposal; • fail to include the NSH recommendation in the proxy statement; • if any acquisition proposal has been made public, fail to issue a press release recommending against such acquisition proposal and reaffirming NSH’s recommendation, if requested by the Partnership in writing, within the earlier of (1) ten business days of such written request, and (2) two business days before the NSH unitholder meeting; • resolve, publicly propose or agree to do any of the foregoing; or • except for a confidentiality agreement, approve, adopt or recommend, or publicly propose to approve, adopt or recommend, or allow the Company NSH or any Subsidiary of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement agreement, option agreement, joint venture agreement, partnership agreement, or other similar agreement contract or any tender or exchange offer providing for, with respect to, or that is reasonably expected to result inin connection with, any Acquisition Proposal (other than acquisition proposal. However, at any time before the NSH unitholder approval is obtained, the NSH Board may terminate the merger agreement in order to accept a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, superior proposal or make a change in its recommendation (x) in response to the following receipt of an unsolicited Acquisition Proposal, if acquisition proposal that did not result from an intentional and material breach of the Company merger agreement and that the NSH Board (or any committee thereof) (A) determines has concluded in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (faith, after consultation with its outside legal counselcounsel and financial advisors, constitutes a superior proposal or (y) that it is required solely in response to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such actionan intervening event, and Parent does not makein each case referred to in clauses (x) and (y) above, after being provided with reasonable opportunity to negotiate with if the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company NSH Board determines, has concluded in good faith (faith, after consultation with its independent outside legal counsel and financial advisor and legal counsel)advisors, is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent that failure to make such an offer, and (3), a change in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall its recommendation would be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so in order to comply inconsistent with its fiduciary duties under applicable law, then as modified by NSH limited liability company agreement. The NSH Board will not be entitled to change its recommendation until after three business days following the Company Partnership’s, the Partnership Board’s and the Partnership Conflicts Committee’s receipt of written notice from NSH advising that the NSH Board may withdrawintends to take such action and the reasons for doing so, or modify or including, if applicable, the terms and conditions of any superior proposal that is the basis of the proposed action and the identity of the person making the proposal and contemporaneously providing a copy of all relevant proposed transaction documents for such superior proposal (it being understood and agreed that any amendment to the terms of any such superior proposal shall require a new notice of proposed recommendation change and an 72 additional three business day period). After providing such notice and prior to effecting such change in recommendation: • NSH must, to the extent requested by the Partnership be available to meet and engage in good faith negotiations, during such three business day period, with the Partnership and its representatives to modify the merger agreement; and • in determining whether to make a manner adverse to Parent and Merger Cochange in recommendation, the Company NSH Board Recommendation must take into account any agreed modifications to the merger agreement. NSH must also as promptly as practicable (either and in any event described within 48 hours after receipt) advise the Partnership orally and in writing of any acquisition proposal and the foregoing clauses material terms and conditions of any such acquisition proposal (xincluding any changes thereto) and identify the person making any such acquisition proposal. NSH must keep the Partnership informed on a reasonably current basis of material developments to the status and details (y), a “Change in Board Recommendation”). Any action by including any material amendments to the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee terms thereof) does not unconditionally support adoption of this Agreement by the stockholders of the Company or does not believe that the Merger and the Agreement are in the best interests of the stockholders of the Company shall be deemed for all purposes of this Agreement with respect to be a Change in Board Recommendationany such acquisition proposal.