Common use of Change of Recommendation for Superior Proposal Clause in Contracts

Change of Recommendation for Superior Proposal. Nothing in this Agreement shall prevent the Company Board from effecting a Change of Recommendation in connection with a Superior Proposal or the Company from terminating this Agreement pursuant to Section 7.1(h) to enter into a definitive agreement to accept a Superior Proposal if: (i) the Company Stockholder Approval has not yet been obtained; (ii) the Company has complied in all material respects with the provisions of Section 5.2 and this Section 5.3; (iii) such Superior Proposal has been submitted to the Company, has not been withdrawn and continues to be a Superior Proposal; (iv) the Company has provided to Parent at least four (4) Business Days’ prior written notice (a “Notice of Superior Proposal”) that stated expressly (A) that the Company has received such Superior Proposal, (B) the material terms and conditions of such Superior Proposal and the identity of the Person or Group submitting such Superior Proposal and (C) that the Company Board intends to effect a Change of Recommendation (it being understood that the Notice of Superior Proposal shall not, in and of itself, constitute a Change of Recommendation for purposes of this Agreement so long as such notice clearly states that it is not a Change of Recommendation and that the Company Board has not otherwise effected a Change of Recommendation), and has provided Parent with an unredacted copy of such Superior Proposal, together with unredacted copies of all proposed transaction agreements and, subject to any express restrictions imposed by the lenders thereto, any financing commitments relating thereto received by the Company Board (collectively, the “Superior Proposal Materials”), concurrently with the delivery of such Notice of Superior Proposal; (v) the Company has, during the four (4) Business Day period referred to in Section 5.3(d)(iv), if requested by Parent, made the Company Representatives available to discuss and negotiate in good faith with Parent’s Representatives any modifications to the terms and conditions of this Agreement that Parent desires to propose such that such Superior Proposal would cease to constitute a Superior Proposal; (vi) Parent has not, within four (4) Business Days of Parent’s receipt of such Notice of Superior Proposal, made a written, binding and irrevocable (through the expiration of such four (4) Business Day period) offer that the Company Board has concluded in good faith (following consultation with its outside legal counsel and a financial advisor of national standing) to be at least as favorable to the Company’s stockholders as such Superior Proposal (it being agreed that (A) the Company Board shall convene a meeting to consider any such offer by Parent following the receipt thereof, (B) the Company Board will not effect a Change of Recommendation and the Company will not terminate this Agreement pursuant to Section 7.1(h) for four (4) Business Days after receipt by Parent of such Notice of Superior Proposal and such Superior Proposal Materials and (C) any change to the financial or other material terms of such Superior Proposal shall require a new Notice of Superior Proposal to Parent and a new three (3) Business Day period and discussion process under this Section 5.3(d) (and all references to four (4) Business Day periods in this Section 5.3(d) shall be deemed three (3) Business Day periods for purposes of this Section 5.3(d)(vi)(C); provided that such new Notice of Superior Proposal shall in no event shorten the original four (4) Business Day period); and (vii) the Company Board has concluded in good faith (following consultation with its outside legal counsel) that, in light of such Superior Proposal and any modifications proposed by Parent pursuant to Section 5.3(d)(vi), the failure to effect a Change of Recommendation or terminate this Agreement pursuant to Section 7.1(h) (if applicable) would be inconsistent with its fiduciary obligations to the Company’s stockholders under Applicable Legal Requirements.

Change of Recommendation for Superior Proposal. Nothing Notwithstanding anything to the contrary contained in this Agreement shall prevent Section 6.1(a), the Company Board from effecting may effect a Change of Recommendation in connection with a Superior Proposal or following the Company from terminating this Agreement pursuant to Section 7.1(h) to enter into a definitive agreement to accept a Superior Proposal ifsatisfaction of all of the following conditions: (i) the Company Stockholder Approval Offer has not yet been obtainedconsummated; (ii) (A) an Acquisition Proposal that did not result, directly or indirectly, from a breach of Section 6.1(a) has been submitted to the Company and has not been withdrawn, (B) the Company shall have complied in all material respects with its obligations under Section 6.1 with respect to such Acquisition Proposal, and (C) the provisions of Section 5.2 Company Board has concluded in good faith, after consultation with its financial and this Section 5.3; (iii) legal advisors, that such Superior Acquisition Proposal has been submitted to the Company, has not been withdrawn and continues to be constitutes a Superior Proposal; (iviii) the Company has provided to Parent at least four (4) Business Days’ prior written notice (a “Notice of Superior Proposal”) that stated expressly (A) that the Company has received such Superior Proposal, (B) the material terms and conditions of such Superior Proposal and the identity of the Person or Group submitting such Superior Proposal and (C) that the Company Board intends to effect a Change of Recommendation (and the manner and timing in which it being understood that the Notice of Superior Proposal shall not, in and of itself, constitute a Change of Recommendation for purposes of this Agreement so long as such notice clearly states that it is not a Change of Recommendation and that the Company Board has not otherwise effected a Change of Recommendation), and has provided Parent with an unredacted copy of such Superior Proposal, together with unredacted copies of all proposed transaction agreements and, subject intends to any express restrictions imposed by the lenders thereto, any financing commitments relating thereto received by the Company Board (collectively, the “Superior Proposal Materials”), concurrently with the delivery of such Notice of Superior Proposaldo so; (viv) the Company has, during the four (4) Business Day period referred to in Section 5.3(d)(iv6.1(d)(iii), if requested by Parent, made the Company Representatives reasonably available to discuss and negotiate in good faith with Parent’s Representatives (to the extent Parent desires to negotiate) any modifications to the terms and conditions of this Agreement that Parent desires to propose such that such Superior Proposal would cease to constitute a Superior Proposal; (vi) Parent has not, within four (4) Business Days of Parent’s receipt of such Notice of Superior Proposal, made a written, binding and irrevocable (through the expiration of such four (4) Business Day period) offer that the Company Board has concluded in good faith (following consultation with its outside legal counsel and a financial advisor of national standing) to be at least as favorable to the Company’s stockholders as such Superior Proposal (it being agreed that (Av) the Company Board shall convene a meeting have considered in good faith any changes to consider any such offer this Agreement that may be offered in writing by Parent following no later than 5:00 p.m. (Eastern Time) on the receipt thereof, (B) the Company Board will not effect a Change of Recommendation and the Company will not terminate this Agreement pursuant to Section 7.1(h) for four (4) Business Days after receipt by Parent fourth day of such Notice of Superior Proposal and such Superior Proposal Materials and (C) any change to the financial or other material terms of such Superior Proposal shall require a new Notice of Superior Proposal to Parent and a new three (3) four Business Day period in a manner that would form a binding contract if accepted by the Company, and discussion process under this Section 5.3(d) (and all references to four (4) Business Day periods in this Section 5.3(d) shall be deemed three (3) Business Day periods for purposes of this Section 5.3(d)(vi)(C); provided have determined that such new Notice of the Superior Proposal shall in no event shorten the original four (4) Business Day period)would continue to constitute a Superior Proposal if such changes were to be given effect; and (viivi) the Company Board has concluded in good faith (following consultation with its outside legal counsel) that, in light of such Superior Proposal and any modifications proposed by Parent pursuant to Section 5.3(d)(vi)Parent, the failure to effect a Change of Recommendation or terminate this Agreement pursuant to Section 7.1(h) (if applicable) would be inconsistent with its fiduciary obligations to the stockholders of the Company under Applicable Law. If the financial or other material terms of such Acquisition Proposal are materially amended, the Company will deliver to Parent a new notice, and the period of negotiation provided in the foregoing sentence shall in no event end prior to 11:59 p.m. (Eastern Time) on the second Business Day following Parent’s receipt of such new notice, but no such new notice shall shorten the original notice period; provided, that the Company’s stockholders obligations set forth in this Section 6.1(d) shall apply only with respect to the first such amendment of an Acquisition Proposal, regardless of any subsequent amendment or modification thereto; provided further, that notwithstanding the foregoing, in each instance where the Person making such Acquisition Proposal lowers the proposed price included in such Acquisition Proposal or amends such Acquisition Proposal other than with regard to price in a manner materially adverse to the Company, the Company shall deliver to Parent a new notice, and a new two Business Day period and negotiation process shall apply under Applicable Legal Requirementsthis Section 6.1(d). For clarity, all references to four Business Day periods in this Section 6.1(d) shall be deemed to refer to two Business Day periods with respect to the subsequent negotiation periods referenced in this paragraph.

Change of Recommendation for Superior Proposal. Nothing Notwithstanding anything to the contrary contained in this Agreement shall prevent Section 6.1(a), the Company Board from effecting may effect a Change of Recommendation in connection with a Superior Proposal or following the Company from terminating this Agreement pursuant to Section 7.1(h) to enter into a definitive agreement to accept a Superior Proposal ifsatisfaction of all of the following conditions: (i) the Company Stockholder Approval Offer has not yet been obtainedconsummated; (ii) the Company has complied in all material respects with the provisions of Section 5.2 and this Section 5.36.1; (iii) such a Superior Proposal has been submitted to the Company, has not been withdrawn and continues to be a Superior ProposalProposal (as determined in accordance with Section 6.1(c)); (iv) the Company has provided to Parent at least four (4) Business Days’ prior written notice (which notice may be provided at the same time as the notice provided pursuant to Section 6.1(c)(ii)(C)) (a “Notice of Superior Proposal”) that stated expressly (A) that the Company has received such Superior Proposal, (B) the material terms and conditions of such Superior Proposal and the identity of the Person or Group submitting such Superior Proposal and (C) that the Company Board intends to effect a Change of Recommendation (and the manner and timing in which it being understood that the Notice of Superior Proposal shall not, in and of itself, constitute a Change of Recommendation for purposes of this Agreement so long as such notice clearly states that it is not a Change of Recommendation and that the Company Board has not otherwise effected a Change of Recommendation)intends to do so, and has provided Parent with an unredacted copy of such Superior Proposal, together with unredacted copies of all proposed transaction agreements and, subject to any express restrictions imposed by the lenders thereto, and any financing commitments relating thereto received by the Company Board (collectively, the “Superior Proposal Materials”), concurrently with the delivery of such Notice of Superior Proposal; (v) the Company hashas (A) contemporaneously with or prior to delivering or making available any non-public information to the Person or Group submitting such Superior Proposal, delivered such non-public information to Parent (or made available to Parent such non-public information; provided that the Company shall have delivered to Parent a list identifying all such non-public information), and (B) during the four (4) four-Business Day period referred to in Section 5.3(d)(iv6.1(d)(iv), if requested by Parent, made the Company Representatives available to discuss and negotiate in good faith with Parent’s Representatives any modifications to the terms and conditions of this Agreement that Parent desires to propose such that such Superior Proposal would cease to constitute a Superior Proposal; (vi) Parent has not, within four (4) Business Days of Parent’s receipt of such Notice of Superior Proposal, made a written, binding and irrevocable (through the expiration of such four (4) four-Business Day period) offer that the Company Board has concluded determined in good faith (following consultation with its outside legal counsel and a financial advisor of national standing) that such Superior Proposal continues to be at least as favorable to the Company’s stockholders as such constitute a Superior Proposal (it being agreed that (A) the Company Board shall convene a meeting to consider any such offer by Parent promptly following the receipt thereof, (B) the Company Board will shall not effect a Change of Recommendation and the Company will not terminate this Agreement pursuant to Section 7.1(h) for four (4) Business Days after receipt by Parent of such Notice of Superior Proposal and such the Superior Proposal Materials and (C) any change to the financial or other material terms of such Superior Proposal shall require a new Notice of Superior Proposal to Parent and a new three (3) Business Day period and discussion process under this Section 5.3(d) (and all references to four (4) Business Day periods in this Section 5.3(d) 6.1(d), except that the additional advance notice period shall be deemed three (3) reduced to two Business Day periods for purposes of this Section 5.3(d)(vi)(C); provided that Days with respect to any such new Notice of Superior Proposal shall in no event shorten the original four (4) Business Day periodProposal); and (vii) the Company Board has concluded determined in good faith (following consultation with its outside legal counsel) that, in light of such Superior Proposal and any modifications proposed by Parent pursuant to Section 5.3(d)(vi)Parent, the failure to effect a Change of Recommendation or terminate this Agreement pursuant is reasonably likely to Section 7.1(h) (if applicable) would be inconsistent with constitute a breach of its fiduciary obligations to the Company’s stockholders of the Company under Applicable Legal RequirementsLaw.

Change of Recommendation for Superior Proposal. Nothing in this Agreement shall prevent the Company Board from effecting withholding, withdrawing, qualifying, amending or modifying the Company Board Recommendation (a “Change of Recommendation in connection with a Superior Proposal or the Company from terminating this Agreement pursuant to Section 7.1(hRecommendation”) to enter into a definitive agreement to accept a Superior Proposal if: (i) the Company Stockholder Approval has not yet been obtained; (ii) the Company has complied in all material respects with the provisions of Section 5.2 and this Section 5.3; (iii) such a Superior Proposal has been submitted to the Company, has not been withdrawn withdrawn, and continues to be a Superior Proposal; (iv) the Company has provided to Parent at least four (4) Business Days’ prior written notice (a “Notice of Superior Proposal”) that stated expressly (A) that the Company has received such Superior Proposal, (B) the material terms and conditions of such Superior Proposal and the identity of the Person or Group submitting such Superior Proposal and (C) that the Company Board intends to effect a Change of Recommendation (and the manner and timing in which it being understood that the Notice of Superior Proposal shall not, in and of itself, constitute a Change of Recommendation for purposes of this Agreement so long as such notice clearly states that it is not a Change of Recommendation and that the Company Board has not otherwise effected a Change of Recommendation)intends to do so, and has provided Parent with an unredacted copy of such Superior Proposal, together with unredacted copies of all proposed transaction agreements and, subject to any express restrictions imposed by the lenders thereto, and any financing commitments relating thereto received by the Company Board (collectively, the “Superior Proposal Materials”), concurrently with the delivery of such Notice of Superior Proposal; (v) the Company has, has during the four (4) four-Business Day period referred to in Section 5.3(d)(iv), if requested by Parent, made the Company Representatives available to discuss and negotiate in good faith with Parent’s Representatives any modifications to the terms and conditions of this Agreement that Parent desires to propose such that such Superior Proposal would cease to constitute a Superior Proposal; (vi) Parent has not, within four (4) Business Days of Parent’s receipt of such Notice of Superior Proposal, made a written, binding and irrevocable (through the expiration of such four (4) four-Business Day period) offer that the Company Board has concluded in good faith (following consultation with its outside legal counsel and a financial advisor of national standing) to be at least as favorable to the Company’s stockholders as such Superior Proposal (it being agreed that (A) the Company Board shall convene a meeting to consider any such offer by Parent promptly following the receipt thereof, (B) the Company Board will not effect a Change of Recommendation and the Company will not terminate this Agreement pursuant to Section 7.1(h) for four (4) Business Days after receipt by Parent of such Notice of Superior Proposal and such Superior Proposal Materials and (C) any change to the financial or other material terms of such Superior Proposal shall require a new Notice of Superior Proposal to Parent and a new three (3) two-Business Day period and discussion process under this Section 5.3(d) (and all references to four (4) four-Business Day periods in this Section 5.3(d) shall be deemed three (3) two-Business Day periods for purposes of this Section 5.3(d)(vi)(C); provided that such new Notice of Superior Proposal shall in no event shorten the original four (4) Business Day period); and (vii) the Company Board has concluded in good faith (following consultation with its outside legal counsel) that), in light of such Superior Proposal and any modifications proposed by Parent pursuant to Section 5.3(d)(vi), that the failure to effect make a Change of Recommendation or terminate this Agreement pursuant to Section 7.1(h) (if applicable) would be inconsistent with its fiduciary obligations to the Company’s stockholders under Applicable Legal Requirements.