Common use of Change in Recommendation Clause in Contracts

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 any 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 of Directors of the 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) being referred to as a “Adverse Recommendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, or allow the Company, the Bank, or any 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 agreement 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 cause, 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 referred to in Section 3.4(a)). Notwithstanding the foregoing, at any time prior to obtaining the approval of the Shareholder Proposal (other 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 favor of a Superior Proposal if the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be a breach of its fiduciary duties under applicable Law; provided, however, that the Company shall not be entitled to exercise its right to make an Adverse Recommendation Change until after the second Business Day following the Purchaser’s receipt of written notice (a “Notice of Recommendation Change”) from the Company advising the Purchaser that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of the Superior Proposal that is the basis of the proposed action by the Board of Directors of the Company (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 Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by the Purchaser in response to a Notice of Recommendation Change or 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 any 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 of Directors of the 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) being referred to as a “Adverse Recommendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, or allow the Company, the Bank, or any 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 agreement 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 cause, 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 referred to in Section 3.4(a)). Notwithstanding the foregoing, at any time prior to obtaining the approval of the Shareholder Proposal (other 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 favor of a Superior Proposal if the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be a breach of its fiduciary duties under applicable Law; provided, however, that the Company shall not be entitled to exercise its right to make an Adverse Recommendation Change until after the second Business Day following the Purchaser’s receipt of written notice (a “Notice of Recommendation Change”) from the Company advising the Purchaser that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of the Superior Proposal that is the basis of the proposed action by the Board of Directors of the Company (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 Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by the Purchaser in response to a Notice of Recommendation Change or 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 any manner adverse to the Purchaser), or propose publicly to withdraw (or modify in any manner adverse to the Purchaserthis Section 6.05(c), the Company Recommendation Board shall not (i) withdraw, or any other approvalmodify or change in a manner adverse to Parent and Merger Co, the approval or recommendation or declaration of advisability by the Board of Directors of the Company or any such committee thereof with respect to this Agreement or the Merger by the Company Board (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Acquisition Proposal (any action in this clause (i) being referred to as a “Adverse Recommendation Change”) or committee thereof); (ii) approve, adopt or recommend any Acquisition Proposal; or declare advisable, (iii) approve or propose publicly to approve, recommend or declare advisablerecommend, or allow the Company, the Bank, Company or any of their Affiliates Subsidiary 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 or arrangement (an “Acquisition Agreement”) constituting or related with respect to, or that is intended to or would reasonably be expected to lead toresult in, any Acquisition Proposal, or requiring, or reasonably expected to cause, 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 Proposal (other than a confidentiality agreement referred to in expressly permitted by Section 3.4(a6.05(b)). Notwithstanding the foregoing, at any time prior (x) in response to obtaining the approval receipt of the Shareholder Proposal (other than the proposal set forth in clause (1)(iii) of the definition of “Shareholder an unsolicited Acquisition Proposal”), the Board of Directors of if the Company may make an Adverse Recommendation Change in favor of a Superior Proposal if the Board of Directors of the Company (or any committee thereof) (A) determines in good faith (after consultation with outside counsel and a its independent financial advisor of nationally recognized reputationadvisor) that the failure 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 would 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 a breach 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 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; providedlaw, however, that then the Company shall not be entitled Board may withdraw, or modify or change in a manner adverse to exercise its right to make an Adverse Parent and Merger Co, the Company Board Recommendation Change until after (either event described in the second Business Day following the Purchaser’s receipt of written notice foregoing clauses (x) and (y), a “Notice of Recommendation ChangeChange in Board Recommendation”) from the Company advising the Purchaser that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the terms and conditions of the Superior Proposal that is the basis of the proposed action by the Board of Directors of the Company (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 Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by the Purchaser in response to a Notice of Recommendation Change or otherwise.

Change in Recommendation. Except as set forth Subject to certain exceptions summarized below, neither the NSH Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (may not: • withdraw, modify or modify in any manner adverse to the Purchaser)qualify, or propose publicly to withdraw (withdraw, modify or modify qualify in any a manner adverse to the Purchaser)Partnership, its recommendationto the Company Recommendation NSH unitholders; • approve or recommend, or publicly propose to approve or recommend, any other approvalacquisition proposal; • fail to include the NSH recommendation in the proxy statement; • if any acquisition proposal has been made public, recommendation or declaration of advisability fail to issue a press release recommending against such acquisition proposal and reaffirming NSH’s recommendation, if requested by the Board Partnership in writing, within the earlier of Directors (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 Company foregoing; or any such committee thereof with respect to this Agreement or (B) • except for a confidentiality agreement, approve, recommend adopt or declare advisablerecommend, or publicly propose publicly to approve, recommend adopt or declare advisable, any Acquisition Proposal (any action in this clause (i) being referred to as a “Adverse Recommendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisablerecommend, or allow the Company, the Bank, NSH or any of their Affiliates its subsidiaries 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 partnership agreement, partnership agreement or other agreement similar contract or arrangement (an “Acquisition Agreement”) constituting any tender or related exchange offer providing for, with respect to, or that is intended to or would reasonably be expected to lead toin connection with, any Acquisition Proposal, or requiring, or reasonably expected to cause, 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 referred to in Section 3.4(a))acquisition proposal. Notwithstanding the foregoingHowever, at any time prior before the NSH unitholder approval is obtained, the NSH Board may terminate the merger agreement in order to obtaining the approval accept a superior proposal or make a change in its recommendation (x) following receipt of an acquisition proposal that did not result from an intentional and material breach of the Shareholder Proposal (other than merger agreement and that the proposal set forth in clause (1)(iii) of the definition of “Shareholder Proposal”), the NSH 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 determines has concluded in good faith (faith, after consultation with its outside legal counsel and financial advisors, constitutes a superior proposal or (y) solely in response to an intervening event, and in each case referred to in clauses (x) and (y) above, if the NSH Board has concluded in good faith, after consultation with its outside legal counsel and financial advisor of nationally recognized reputation) advisors, that the failure to do so make a change in its recommendation would be a breach of inconsistent with its fiduciary duties under applicable Law; providedlaw, however, that the Company shall as modified by NSH limited liability company agreement. The NSH Board will not be entitled to exercise change its right to make an Adverse Recommendation Change recommendation until after the second Business Day three business days following the PurchaserPartnership’s, the Partnership Board’s and the Partnership Conflicts Committee’s receipt of written notice (a “Notice of Recommendation Change”) from the Company NSH advising the Purchaser that the NSH Board of Directors of the Company intends to take such action and specifying the reasons thereforfor doing so, including including, if applicable, the terms and conditions of the Superior Proposal any superior proposal that is the basis of the proposed action by and the Board of Directors identity of the Company 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 material term of such Superior Proposal superior proposal shall require a new Notice notice of Recommendation Change proposed recommendation change and a new two business-an Table of Contents additional three business day period). In 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 an Adverse Recommendation Changea change in recommendation, the NSH Board of Directors of the Company shall 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 of this Agreement proposed 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 Purchaser 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 response 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 under any material agreement to which it or any of its subsidiaries is a Notice party. New Common Units Listed The Partnership will use its reasonable best efforts to list, on the NYSE, prior to the closing of Recommendation Change or otherwisethe merger, the new common units to be issued as merger consideration. Third-Party Approvals NSH and the 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 merger and to cause the amended and restated partnership agreement and the NuStar GP amended and restated company agreement to be effective as expeditiously as practicable.