Common use of Change of Recommendation Clause in Contracts

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Board nor any committee thereof shall (i) withdraw or rescind (or modify in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company Recommendation”), (ii) approve, declare the advisability of or recommend to the holders of Shares the adoption of, or publicly announce an intention to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose or announce an intention to take any of the foregoing actions (any action described in clauses (i), (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with financial and legal advisors as required by the Merger Agreement, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make a

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Company Board nor any committee thereof shall will (i) withdraw fail to make, withdraw, amend or rescind (modify, or modify publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementPurchaser, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or cause, authorize or permit Terremark exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within ten (10) business days after the commencement of its subsidiaries to execute or enter intosuch offer, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation, (v) resolve or announce an intention agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”)) or (vi) resolve or agree to change or modify the election of the Company Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the earlier Acceptance Time, the Company Board, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to occur enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Offer Closing and Terremark’s receipt of Merger Agreement,” but only if, in either case, the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementCompany Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark Company Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • the Company promptly notifies Parent in writing at least three (3) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so; Table of Contents • the Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; • during the Notice Period, the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three (3) business days remain in the Notice Period subsequent to the time the Company notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be in breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the Company Board has (A) provided to Parent at least four (4) business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (B) during such four (4) business day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two (2) Business Days after requested to do so by Parent. The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations.

Change of Recommendation. The Merger Agreement provides thatNotwithstanding anything to the contrary contained in Section 8.1(a), except as provided below, neither in response to the Terremark Board nor any committee thereof shall receipt of a Superior Proposal (i) withdraw or rescind (the Company Board may withhold, withdraw, amend or modify in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementMerger, and, in the Merger and case of a Superior Proposal that is a tender or exchange offer made directly to the Offer (Shareholders, may recommend that the “Company Recommendation”), Shareholders accept the tender or exchange offer (ii) the Company Board, the Company or any other Acquired Company may approve, declare the advisability of endorse, or recommend to the holders of Shares the adoption ofany Superior Proposal, or publicly announce an intention to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark the Company or any of its subsidiaries other Acquired Company may execute or enter into or propose to execute or enter into, into any letter of intentintent or similar document or any contract, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Takeover Proposal, other than an Acceptable Confidentiality Agreement Superior Proposal or transaction contemplated thereby (a “Company Acquisition Agreement”), or (iv) publicly propose or announce an intention to take any of the foregoing actions (any action described set forth in clauses (i), (ii), (iii) or (iv) being referred to as an iii), whether by the Company Board or a committee thereof, a “Company Adverse Recommendation ChangeChange of Recommendation”). The Terremark Board may at any time prior to the earlier to occur , if all of the Offer Closing and Terremark’s receipt of following conditions are met: i. the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with the Company’s financial advisors and outside legal advisors as required by counsel that a Superior Proposal has been made and not withdrawn; ii. the Shareholders have not approved this Agreement in accordance with applicable Legal Requirements; iii. the Company shall have delivered to Merger AgreementCorp written notice at least five (5) Business Days prior to publicly effecting such Change of Recommendation which states expressly (1) that the Company has received a Superior Proposal, (2) the final terms and conditions of the Superior Proposal and the identity of the Person or group making the Superior Proposal, and (3) that the Company intends to effect a Change of Recommendation; and iv. the Company Board shall have determined (1) after consultation with its financial advisor, that the terms of the Superior Proposal are more favorable to the Shareholders of the Company than the Merger and (2) after consultation with outside legal counsel, the failure to take effect a Change of Recommendation could reasonably result in a breach of the Company Board’s fiduciary duties to the Shareholders under applicable Legal Requirements. In addition, the Company Board may withdraw, modify or fail to make, in a manner adverse to Merger Corp, the recommendation of the Company Board in favor of the adoption and approval of this Agreement and the approval of the Merger in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of this Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of this Agreement (an “Intervening Event”), if the Company Board determines in good faith after consultation with outside legal counsel, that in light of such action would be inconsistent with Intervening Event, the failure of the Company Board to effect such a change of recommendation could reasonably result in a breach of its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make aLegal Requirements.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of Liberty nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw or rescind qualify (or amend or modify in a manner adverse to Parent), the Company) or publicly announce an intention propose to withdraw or rescind qualify (or amend or modify in a manner adverse to Parentthe Company), its the approval, recommendation or declaration of advisability by such Board of Directors or such committee thereof of this Agreement or that the Liberty Ventures Stockholders vote in favor of the Merger AgreementSplit-Off, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Liberty Ventures Transaction Proposal, including by, in the Merger and case of a tender or exchange offer, failing to promptly recommend rejection of such offer or (C) fail to publicly reaffirm its approval, recommendation or declaration of advisability by such Board of Directors that the Offer Liberty Ventures Stockholders vote in favor of the Split-Off within five (5) Business Days after the Company so requests in writing if an Alternative Liberty Ventures Transaction Proposal or any modification thereto shall have been made publicly or sent or given to the Liberty Ventures Stockholders (or any Person or group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Liberty Ventures Transaction Proposal) (any action described in this clause (i) being referred to as a “Company RecommendationLiberty Adverse Recommendation Change”), ) or (ii) approve, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark allow Liberty or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Liberty Ventures Acquisition Agreement”) (other than a confidentiality agreement entered into pursuant to Section 5.3(b)(i)) (A) constituting, or relating to, any Alternative Liberty Ventures Transaction Proposal or (ivB) publicly propose requiring it (or announce an intention that would require it) to take any of abandon, terminate or fail to consummate the foregoing actions (any action described transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in clauses (i), (ii), (iiithis Section 5.3(d) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may in any other provision of this Agreement, at any time prior to obtaining the earlier to occur of the Offer Closing and Terremark’s receipt of the Company Liberty Stockholder Approval, effect solely in response to a Company Liberty Ventures Intervening Event or Superior Liberty Ventures Proposal, the Board of Directors of Liberty (or any committee thereof) may make a Liberty Adverse Recommendation Change Change, if and only if all of the Terremark following conditions are met: (i) in the case of a Superior Liberty Ventures Proposal, such Superior Liberty Ventures Proposal has been made and has not been withdrawn and continues to be a Superior Liberty Ventures Proposal; (ii) the Liberty Stockholder Approval has not been obtained; (iii) the Board determines of Directors of Liberty (or a committee thereof) has determined in good faith, after consultation with its outside legal counsel and a financial and legal advisors as required by the Merger Agreementadvisor of nationally recognized reputation, that that, in light of such Liberty Ventures Intervening Event or Superior Liberty Ventures Proposal, the failure to take such action make a Liberty Adverse Recommendation Change would reasonably be inconsistent with expected to constitute a breach of its fiduciary duties under applicable law. Notwithstanding anything Law; (iv) Liberty has (A) provided to the contraryCompany five (5) Business Days’ prior written notice (the “Liberty Notice Period”), which notice shall state expressly (1) that it has received a Superior Liberty Ventures Proposal or that there has been a Liberty Ventures Intervening Event, (2) in the case of a Superior Liberty Ventures Proposal, the Terremark Board material terms and conditions of the Superior Liberty Ventures Proposal (including the per share value of the consideration offered therein and the identity of the Person or group of Persons making the Superior Liberty Ventures Proposal), and that Liberty shall have provided to the Company contemporaneously with the delivery of such notice a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Liberty Ventures Proposal and other material documents (it being understood and agreed that any amendment (or subsequent amendment) to the financial terms, including but not limited to the proposed purchase price, or to any other material term of such Superior Liberty Ventures Proposal shall each require Liberty to provide a new notice to the Company in accordance with this clause (iv), provided that the Liberty Notice Period in connection with any such new notice shall be permitted three (3) Business Days (the “Amended Liberty Notice Period”)) and (3) that it intends to make aa Liberty Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor, and (B) prior to making a Liberty Adverse Recommendation Change, during the Liberty Notice Period or the Amended Liberty Notice Period, as applicable, to the extent requested by the Company, engaged in good faith negotiations with the Company during the Liberty Notice Period or Amended Liberty Notice Period, as applicable, to amend this Agreement, and considered in good faith any bona fide offer (a “Company Offer”) by the Company to Liberty and, after such negotiations or good faith consideration of such Company Offer, the Board of Directors of Liberty (or any committee thereof) again makes the determination described in Section 5.3(d)(iii); and (v) Liberty shall have complied with this Section 5.3 in all material respects.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark NetSuite Board nor any committee thereof shall will (i) withdraw fail to make, withdraw, amend or rescind (modify, or modify publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementPurchaser, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or cause, authorize or permit Terremark exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of its subsidiaries to execute or enter intosuch offer, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation, (v) resolve or announce an intention agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”)) or (vi) resolve or agree to change or modify the election of the NetSuite Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the earlier Acceptance Time, the NetSuite Board, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to occur enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Offer Closing and Terremark’s receipt Merger Agreement,” but only if, in either case, the NetSuite Board (upon the recommendation of the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board Transactions Committee) determines in good faith, after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementNetSuite Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark NetSuite Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • NetSuite promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (A) the determination in itself by the NetSuite Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (B) the delivery in itself by NetSuite to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Table of Contents Adverse Recommendation Change Notice, or (C) the public disclosure of the matters described in clause (A) or (B), will constitute an Adverse Recommendation Change (in each case of clauses (A), (B) and (C), to the extent in accordance with the Merger Agreement); • NetSuite attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; • during the Notice Period, if requested by Parent, NetSuite and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least three Business Days remain in the Notice Period subsequent to the time NetSuite notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the NetSuite Board (upon the recommendation of the Transactions Committee) in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of NetSuite as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the NetSuite Board (upon the recommendation of the Transactions Committee) may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the NetSuite Board nor reasonably foreseeable by the NetSuite Board as of the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the NetSuite Board determines in good faith, after consultation with outside legal counsel to the NetSuite Board, that, in light of such Intervening Event, the failure of the NetSuite Board to effect such an Adverse Recommendation Change would be a breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the NetSuite Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the NetSuite Board has (A) provided to Parent at least five Business Days’ prior written notice advising Parent that the NetSuite Board intends to take such action and specifying the facts underlying the NetSuite Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, it being understood that neither (1) the delivery in itself by NetSuite to Parent of such notice, nor (2) the public disclosure of the matters described in clause (1), will constitute an Adverse Recommendation Change (in each case of clauses (1) and (2), to the extent in accordance with the terms of the Merger Agreement) and (B) during such five Business Day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change of Recommendation”) will prevent the NetSuite Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the NetSuite Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two Business Days after requested to do so by Parent.

Change of Recommendation. The Merger Agreement provides thatNotwithstanding anything to the contrary contained in Section 5.3(a), except as provided belowin response to the receipt of a Superior Offer, neither (x) the Terremark Board nor any committee thereof shall (i) withdraw or rescind (of Directors of the Company may withhold, withdraw, amend or modify in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementMerger, and, in the Merger and case of a Superior Offer that is a tender or exchange offer made directly to the Offer stockholders of the Company, may recommend that the stockholders of the Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of the Company or a committee thereof, a “Company Change of Recommendation”), (iiy) the Board of Directors of the Company, the Company or its Subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, declare the advisability of endorse, or recommend to the holders of Shares the adoption ofany Superior Offer or recommend a Superior Offer, or publicly announce an intention to approve, declare (z) the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Subsidiaries may execute or enter into or propose to execute or enter into, into any letter of intentintent or similar document or any contract, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Takeover ProposalSuperior Offer or transaction contemplated thereby, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose or announce an intention to take any if all of the foregoing actions (any action described following conditions in clauses (i), ) through (ii), vi) are met: (iiii) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark the Board may at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt Directors of the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with the Company’s financial advisors and outside legal advisors counsel, that a Superior Offer has been made and not withdrawn; (ii) the stockholders of the Company have not approved this Agreement in accordance with applicable Law; (iii) the Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least five (5) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (A) that the Company has received a Superior Offer, (B) the final terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer and (C) that the Company intends to effect a Change of Recommendation; (iv) after delivering the Change of Recommendation Notice, the Company shall provide Parent with a reasonable opportunity to make such adjustments in the terms and conditions of this Agreement during such five- (5) Business Day period, and negotiate in good faith with respect thereto during such five- (5) Business Day period, as required by would enable the Merger AgreementCompany to proceed with its recommendation to stockholders in favor of adoption of this Agreement without making a Change of Recommendation; (v) the Board of Directors of the Company shall have determined (A) after consultation with its financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything terms of the Superior Offer are more favorable to the contrary, stockholders of the Terremark Board shall not Company than the Merger (taking into account as it may be permitted adjusted pursuant to make aparagraph (iv) above) and Table of Contents

Change of Recommendation. The Merger Agreement provides thatNotwithstanding anything to the contrary contained in Sections 4.2(a), except as provided below4.2(b) or 4.2(c), neither in response to the Terremark Board nor any committee thereof shall receipt of a Superior Offer, (i) withdraw or rescind (the Board of Directors of the Receiving Constituent Company may withhold, withdraw, amend or modify in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger adoption and approval of this Agreement and the transactions contemplated hereby, and, may recommend in favor of a Superior Offer, and in the case of a Superior Offer that is a tender or exchange offer made directly to the stockholders of such Receiving Constituent Company, may recommend that the stockholders of such Receiving Constituent Company accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors of such Receiving Constituent Company or a committee thereof, a “Company Change of Recommendation”), (ii) such Receiving Constituent Company or its subsidiaries (including each of their respective directors, officers, employees, agents or other representatives) may approve, declare the advisability of endorse, or recommend to the holders of Shares the adoption ofa Superior Offer, or publicly announce an intention to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark such Receiving Constituent Company or any of its subsidiaries may execute or enter into or propose to execute or enter into, into any letter of intentintent or similar document or any contract, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related commitment (which may be conditioned on the termination of this Agreement) contemplating or otherwise relating to any Takeover ProposalSuperior Offer or transaction contemplated thereby, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose or announce an intention to take any if all of the foregoing actions (any action described following conditions in clauses (i), A) through (ii), E) are met: (iiiA) or (iv) being referred to as an “the Board of Directors of such Receiving Constituent Company Adverse Recommendation Change”). The Terremark Board may at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with such Receiving Constituent Company’s financial advisor, if any, and outside legal advisors as required by the Merger Agreementcounsel, that a Superior Offer has been made and not withdrawn; (B) the failure to take stockholders of such action would be inconsistent Receiving Constituent Company have not previously adopted and approved this Agreement and the transactions contemplated hereby in accordance with its fiduciary duties under applicable law. Notwithstanding anything ; (C) such Receiving Constituent Company shall have delivered to the contraryother Constituent Companies written notice (a “Change of Recommendation Notice”) at least four (4) Business Days prior to publicly effecting such Change of Recommendation which shall state expressly (w) that such Receiving Constituent Company has received a Superior Offer; (x) the most recent terms and conditions of the Superior Offer and the identity of the Person or group making the Superior Offer (and in the event such Receiving Constituent Company exercises its right to terminate this Agreement pursuant to Section 6.1(c), such Receiving Constituent Company shall provide to the Terremark Board shall not other Constituent Companies a copy of the final agreement to be permitted entered into in connection with the Superior Offer); (y) that such Receiving Constituent Company intends to make aeffect a Change of Recommendation; and (z) that such Receiving Constituent Company agrees to reimburse the expenses of the other Constituent Companies as contemplated under Section 6.2;

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of Parent nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw or rescind qualify (or amend or modify in a manner adverse to Parent), the Company in any material respect) or publicly announce an intention propose to withdraw or rescind qualify (or amend or modify in a manner adverse to Parentthe Company in any material respect), its approval and recommendation that stockholders vote in favor of the Merger AgreementStock Issuance, the Merger Parent Common Stock Reorganization and the Offer Parent Common Stock Exchange or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Parent Transaction Proposal, including by, in the case of a tender or exchange offer, failing to promptly recommend rejection of such offer (any action described in this clause (i) being referred to as a “Company RecommendationParent Adverse Recommendation Change”), ) or (ii) approve, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark allow Parent or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Parent Acquisition Agreement”)) (A) constituting, or relating to, any Alternative Parent Transaction Proposal or (ivB) publicly propose requiring it (or announce an intention that would require it) to take abandon, terminate or fail to consummate the Merger or any of other transaction contemplated by this Agreement. Notwithstanding anything to the foregoing actions (any action described contrary set forth in clauses (i), (ii), (iiithis Section 5.3(d) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may in any other provision of this Agreement, at any time prior to obtaining the earlier Parent Stockholder Approvals, but solely in response to occur a Parent Intervening Event or Superior Parent Proposal, the Board of the Offer Closing and Terremark’s receipt Directors of the Company Stockholder Approval, effect Parent may make a Company Parent Adverse Recommendation Change if and only if all of the Terremark following conditions are met: (i) in the case of a Superior Parent Proposal, such Superior Parent Proposal has been made and has not been withdrawn and continues to be a Superior Parent Proposal; (ii) the Parent Stockholder Approvals have not been obtained; (iii) the Board determines of Directors of Parent has determined in good faith, after consultation with financial and its outside legal advisors as required by the Merger Agreementcounsel, that that, in light of such Parent Intervening Event or Superior Parent Proposal, the failure to take such action make a Parent Adverse Recommendation Change would reasonably be inconsistent with expected to constitute a breach of its fiduciary duties under applicable law. Notwithstanding anything Law; (iv) Parent has (A) provided to the contraryCompany four (4) Business Days’ prior written notice (the “Parent Notice Period”) which shall state expressly (1) that it has received a Superior Parent Proposal or that there has been a Parent Intervening Event, (2) in the case of a Superior Parent Proposal, the Terremark Board material terms and conditions of the Superior Parent Proposal (including the per share value of the consideration offered therein and the identity of the Person or group of Persons making the Superior Parent Proposal), and shall not have contemporaneously provided a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Parent Proposal and other material documents (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Parent Proposal shall require a new notice, provided that the Parent Notice Period in connection with any such new notice shall be permitted three (3) Business Days) and (3) that it intends to make aa Parent Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor, and (B) prior to making a Parent Adverse Recommendation Change, to the extent requested by the Company, engaged in good faith negotiations with the Company during the Parent Notice Period to amend this Agreement, and, after such negotiations, the Board of Directors of Parent again makes the determination described in Section 5.3(d)(iii); and (v) Parent shall have complied with Section 5.3 in all material respects.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of the Company nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw (or rescind qualify, amend or modify in a manner adverse to Parent) or publicly propose to withdraw (or qualify, amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or such committee thereof of this Agreement, or the Merger or the other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly announce to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company’s Board of Directors and the Special Committee may take no position with respect to an intention Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to withdraw in this clause) or rescind (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made publicly or sent or given to the Company Stockholders (or modify any Person or Group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause ‎(i) being referred to as a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company RecommendationAdverse Recommendation Change”), ) or (ii) approveexcept as expressly provided herein, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare or allow the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Acquisition Agreement”)) (A) constituting, or (iv) publicly propose or announce an intention to take providing for, any of the foregoing actions (any action described in clauses (i), (ii), (iii) Alternative Company Transaction Proposal or (ivB) being referred requiring it (or that would require it) to as an “Company Adverse Recommendation Change”)abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. The Terremark Board may Notwithstanding anything to the contrary set forth in this ‎Section 5.2 or in any other provision of this Agreement, at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of obtaining the Company Stockholder Approval, effect the Board of Directors of the Company may, subject to compliance with ‎Section 5.2(e), solely in response to either (x) a Company Intervening Event or (y) a Superior Company Proposal, make a Company Adverse Recommendation Change only or, solely in response to an Alternative Company Transaction Proposal, terminate this Agreement pursuant to Section 7.1(c)(i) in order to enter concurrently into a definitive agreement with respect to a Superior Company Proposal, if in either case the Terremark Board of Directors of the Company determines in good faith, faith after consultation with the Special Committee and its outside legal counsel and financial and legal advisors as required by the Merger Agreementadvisor, that the failure to take such action would be likely to be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make aLaw.

Change of Recommendation. The Merger Agreement provides that, except (i) Except as provided belowset forth in Section 4.02(e) or clause (ii) of this Section 4.02(f), neither the Terremark Sonoma Board nor any committee thereof shall shall: (iA) withdraw withhold, withdraw, qualify or rescind modify (or modify publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to ParentGreystone, the Sonoma Board Recommendation, or adopt, approve or recommend to propose to adopt, approve or recommend (publicly or otherwise) a Competing Proposal; (B) take formal action or make any recommendation or public statement in connection with a tender offer or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act (it being understood that the Sonoma Board may refrain from taking a position with respect to a Competing Proposal until the close of business on the tenth (10th) Business Day after the commencement of a tender offer or exchange offer in connection with such Competing Proposal pursuant to Rule 14d-9(f) under the Exchange Act without such action being considered an adverse modification of the Sonoma Board Recommendation) (each action set forth in clause (A) above and this clause (B) of this Section 4.02(f), a “Change of Recommendation”); (C) cause or permit Sonoma to approve, adopt, recommend or enter into, or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company Recommendation”), (ii) approve, declare the advisability of or recommend to the holders of Shares the adoption of, or publicly announce an intention propose to approve, declare the advisability of or adopt, recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any acquisition agreement, merger agreement or similar definitive agreement, a letter of intent, memorandum of understanding, agreement-in-principleagreement in principle or similar document, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, understanding with respect thereto (other than an Acceptable Confidentiality Agreement Agreement) relating to any Competing Proposal (a “Company Acquisition Competing Proposal Agreement”) (provided, that, for the avoidance of doubt, nothing in this Section 4.02 shall permit Sonoma to adopt or enter into a Competing Proposal Agreement prior to termination of this Agreement in accordance with its terms), or ; or (ivD) publicly propose or announce an intention to take any of action pursuant to Section 7.01(d)(ii). (ii) Notwithstanding the foregoing actions (any action described limitations set forth in clauses Section 4.02(f) (i), (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may at any time prior to the earlier to occur Competing Proposal Time, the Sonoma Board may make a Change of Recommendation if, in the case the Change of Recommendation is being made as a result of a Competing Proposal, the Sonoma Board has concluded that such Competing Proposal constitutes a Superior Proposal and Sonoma has complied with Section 4.02(e). Notwithstanding any such Change of Recommendation, such Change of Recommendation shall have no effect whatsoever on the validity of the Offer Closing and Terremark’s Requisite Stockholder Approval granted pursuant to the Written Consent. At any time prior to the receipt of the Company Requisite Stockholder Approval, effect the Sonoma Board may make a Company Adverse Change of Recommendation if, in the case such Change only if of Recommendation is not being made as a result of a Competing Proposal, the Terremark Sonoma Board determines has concluded in good faith, faith after consultation with Sonoma’s outside legal and financial and legal advisors as required by the Merger Agreement, that the failure to take such action would be reasonably likely to be inconsistent with its the fiduciary duties of the Sonoma Board to Sonoma’s stockholders under applicable lawLaw. Notwithstanding anything any such Change of Recommendation, unless this Agreement is otherwise terminated in accordance with its terms, consistent with Section 146 of the DGCL, Sonoma shall submit the Restated Sonoma Charter, the New Sonoma Stock Issuance and the Contribution to the contrarystockholders of Sonoma for their consideration to adopt and approve, as applicable, by action by written consent in accordance with Section 228 of the Terremark Board shall not be permitted to make aDGCL.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of the Company nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw (or rescind qualify, amend or modify in a manner adverse to Parent) or publicly propose to withdraw (or qualify, amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or such committee thereof of this Agreement, or the Merger or the other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly announce to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company’s Board of Directors and the Special Committee may take no position with respect to an intention Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to withdraw in this clause) or rescind (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made publicly or sent or given to the Company Stockholders (or modify any Person or Group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause (i) being referred to as a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company RecommendationAdverse Recommendation Change”), ) or (ii) approveexcept as expressly provided herein, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare or allow the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Acquisition Agreement”)) (A) constituting, or (iv) publicly propose or announce an intention to take providing for, any of the foregoing actions (any action described in clauses (i), (ii), (iii) Alternative Company Transaction Proposal or (ivB) being referred requiring it (or that would require it) to as an “Company Adverse Recommendation Change”)abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. The Terremark Board may Notwithstanding anything to the contrary set forth in this Section 5.2 or in any other provision of this Agreement, at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of obtaining the Company Stockholder Approval, effect the Board of Directors of the Company may, subject to compliance with Section 5.2(e), solely in response to either (x) a Company Intervening Event or (y) a Superior Company Proposal, make a Company Adverse Recommendation Change only or, solely in response to an Alternative Company Transaction Proposal, terminate this Agreement pursuant to Section 7.1(c)(i) in order to enter concurrently into a definitive agreement with respect to a Superior Company Proposal, if in either case the Terremark Board of Directors of the Company determines in good faith, faith after consultation with the Special Committee and its outside legal counsel and financial and legal advisors as required by the Merger Agreementadvisor, that the failure to take such action would be likely to be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make aLaw.

Change of Recommendation. The Pursuant to a meeting duly called and held, the GenTek Board, among other things, has unanimously (i) determined that the Merger Agreement provides thatand the transactions contemplated thereby, are fair to, and in the best interests of, GenTek and the stockholders of GenTek, (ii) duly approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger and the Offer, and (iii) recommended that the stockholders of GenTek accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if required by applicable law, adopt the Merger Agreement and approve the Merger (the “Company Board Recommendation”). The GenTek Board may withdraw, modify or amend the Company Board Recommendation in certain circumstances as summarized herein and as specified in detail in Section 5.4(e) of the Merger Agreement. Pursuant to the Merger Agreement, except as provided described below, neither the Terremark GenTek Board nor any committee thereof shall (i) change, qualify, withdraw or rescind (modify, or modify propose publicly to change, qualify, withdraw or modify, in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of adopt or recommend to the holders of Shares the adoption ofrecommend, or propose publicly announce an intention to approve, declare the advisability of adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal, (iii) make any recommendation in connection with a tender offer or cause, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, exchange offer other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”)recommendation against such offer, or (iv) publicly propose exempt any person from the restrictions contained in any state takeover or announce an intention to take any similar laws, including Section 203 of the foregoing actions (DGCL, any action described in clauses clause (i), (ii), (iii) or (iv) being referred to as an a “Change of Recommendation” or (v) enter into or authorize GenTek to enter into any letter of intent, merger, acquisition, or similar agreement with respect to any Acquisition Proposal other than any confidentiality agreement to be entered into by GenTek (each a “Company Adverse Recommendation ChangeAcquisition Agreement”). The Terremark Board may Under the Merger Agreement, at any time prior to the earlier Acceptance Date, the GenTek Board may, in response to occur a Superior Proposal that has not been withdrawn or abandoned, make either (i) a Change of Recommendation if the GenTek Board has concluded in good faith that the failure of the Offer Closing and Terremark’s receipt GenTek Board to effect a Change of Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of GenTek under applicable law and/or (ii) terminate the Merger Agreement to enter into a Company Acquisition Agreement with respect to such Superior Proposal (a “Superior Termination”); provided that GenTek may not effect such Change of Recommendation or a Superior Termination, in each case in connection with a Superior Proposal, unless both of the Company Stockholder Approvalfollowing conditions have been met: (i) GenTek shall have provided prior written notice to Parent, at least 48 hours or such greater time as necessary to include one entire business day (ending at midnight) in advance (the “Notice Period”), of its intention to effect a Company Adverse Change of Recommendation and/or Superior Termination in response to such Superior Proposal, which notice shall in addition specify the material terms and conditions (including price) of any such Superior Proposal (including the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such notice shall have provided a copy of the relevant proposed acquisition agreement and other material documents related thereto with the party making such Superior Proposal; and (ii) prior to effecting such Change only if of Recommendation and/or Superior Termination in response to a Superior Proposal, GenTek shall, and shall cause its legal and financial advisors to, during the Terremark Board determines Notice Period, negotiate with Parent in good faithfaith (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions the Merger Agreement so that such Superior Proposal ceases to constitute a Superior Proposal. Reasonable Best Efforts to Consummate the Merger; Regulatory Filings. GenTek and Parent agreed in the Merger Agreement to use their reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by the Merger Agreement as promptly as practicable, (ii) obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent or GenTek or any of their respective subsidiaries, or to avoid any action or proceeding by any governmental entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution and delivery of the Merger Agreement and the consummation of the transactions contemplated therein and (iii) as promptly as reasonably practicable, and in any event within 15 business days after consultation the date of the Merger Agreement, make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with financial respect to this Agreement, the Offer and legal advisors as the Merger required under the Exchange Act (and any other applicable federal or state securities laws), the HSR Act (with a request for early termination under the HSR Act) and any other applicable law. GenTek and Parent also agreed to give any notices to third parties and use commercially reasonable efforts to obtain any third party consents necessary, proper or advisable to consummate the transactions contemplated by the Merger Agreement, required to prevent a material adverse effect from occurring to GenTek prior to or after the Effective Time and certain specified third party consents. 22 Table of Contents Additionally, Parent, the Purchaser and GenTek each agreed to: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any governmental entity with respect to the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement, (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding and (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other governmental entity regarding the Offer or the Merger. Parent, the Purchaser and GenTek also agreed to use their respective reasonable best efforts to resolve any objections that may be asserted by any governmental entity with respect to the failure transactions contemplated by the Merger Agreement and to take such action would be inconsistent with its fiduciary duties under applicable lawuse their reasonable best efforts to cause the Closing to occur as promptly as practicable, including by defending against any lawsuits, actions or proceedings, judicial or administrative, challenging the Merger Agreement or the consummation of the transactions contemplated thereby, and seeking to have any restraint or prohibition entered or imposed by any court or other governmental entity that is not yet final and nonappealable vacated or reversed. Notwithstanding anything the foregoing, neither Parent nor GenTek will be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the contraryassets, operations or conduct of their business in a specified manner, or permit the Terremark Board shall not be permitted to make asale, holding separate or other disposition of, any assets of Parent, GenTek or their subsidiaries or affiliates.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of the Company nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw or rescind qualify (or amend or modify in a manner adverse to Parent), Liberty) or publicly announce an intention propose to withdraw or rescind qualify (or amend or modify in a manner adverse to ParentLiberty), its the approval, recommendation in favor or declaration of the Merger advisability by such Board of Directors or such committee thereof of this Agreement, or the Merger and other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Company Transaction Proposal, including by, in the Offer case of a tender or exchange offer, failing to promptly recommend rejection of such offer or (C) fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Liberty so requests in writing if an Alternative Company Transaction Proposal or any modification thereto shall have been made publicly or sent or given to the Company Stockholders (or any Person or group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause (i) being referred to as a “Company RecommendationAdverse Recommendation Change”), ) or (ii) approve, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare or allow the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Acquisition Agreement”) (other than a confidentiality agreement entered into pursuant to Section 5.2(b)(i)) (A) constituting, or relating to, any Alternative Company Transaction Proposal or (ivB) publicly propose requiring it (or announce an intention that would require it) to take any of abandon, terminate or fail to consummate the foregoing actions (any action described transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in clauses (i), (ii), (iiithis Section 5.2(d) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may in any other provision of this Agreement, at any time prior to obtaining the earlier Company Stockholder Approvals, solely in response to occur a Company Intervening Event or Superior Company Proposal, the Board of the Offer Closing and Terremark’s receipt Directors of the Company Stockholder Approval, effect and the Special Committee may make a Company Adverse Recommendation Change only Change, if all of the Terremark following conditions are met: (i) in the case of a Superior Company Proposal, such Superior Company Proposal has been made and has not been withdrawn and continues to be a Superior Company Proposal; (ii) the Company Stockholder Approvals have not been obtained; (iii) each of the Board determines of Directors of the Company and the Special Committee has determined in good faith, after consultation with its respective outside legal counsel and financial and legal advisors as required by the Merger Agreementadvisor of nationally recognized reputation, that that, in light of such Company Intervening Event or Superior Company Proposal, the failure to take such action make a Company Adverse Recommendation Change would reasonably be inconsistent with expected to constitute a breach of its fiduciary duties under applicable law. Notwithstanding anything Law; (iv) the Company has (A) provided to Liberty five (5) Business Days’ prior written notice (the “Company Notice Period”), which notice shall state expressly (1) that it has received a Superior Company Proposal or that there has been a Company Intervening Event, (2) in the case of a Superior Company Proposal, the material terms and conditions of the Superior Company Proposal (including the per share value of the consideration offered therein and the identity of the Person or group of Persons making the Superior Company Proposal), and that the Company shall have provided to Liberty contemporaneously with the delivery of such notice a copy of the relevant proposed transaction agreements with the Person or group of Persons making such Superior Company Proposal and other material documents (it being understood and agreed that any amendment (or subsequent amendment) to the contraryfinancial terms, including but not limited to the proposed purchase price, or to any other material term of such Superior Company Proposal shall each require the Company to provide a new notice to Liberty in accordance with this clause (iv), provided that the Company Notice Period in connection with any such new notice shall be three (3) Business Days (the “Amended Company Notice Period”)) and (3) that it intends to make a Company Adverse Recommendation Change and specifying, in reasonable detail, the Terremark reasons therefor, and (B) prior to making a Company Adverse Recommendation Change, during the Company Notice Period or the Amended Company Notice Period, as applicable, to the extent requested by Liberty, engaged in good faith negotiations with Liberty during the Company Notice Period or Amended Company Notice Period, as applicable, to amend this Agreement, and considered in good faith any bona fide offer (a “Liberty Offer”) by Liberty to the Company and, after such negotiations or good faith consideration of such Liberty Offer, the Board of Directors of the Company and the Special Committee again makes the determination described in Section 5.2(d)(iii); and (v) the Company shall not be permitted to make ahave complied with this Section 5.2 in all material respects.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Cerner Board nor any committee thereof shall will (i) withdraw fail to make, withdraw, amend or rescind (modify, or modify publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementPurchaser, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or cause, authorize or permit Terremark exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of its subsidiaries to execute or enter intosuch offer, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation, (v) resolve or announce an intention agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”)) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the earlier to occur Acceptance Time, the Cerner Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Offer Closing Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Terremark’s receipt Superior Proposal Provisions”), may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination of the Company Stockholder ApprovalMerger Agreement,” but only if, effect a Company Adverse Recommendation Change only if in either case, the Terremark Cerner Board determines in good faith, faith after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementCerner Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark Cerner Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revision.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Board nor any committee thereof shall (i) Except as otherwise expressly provided in this Section 6.4(e), the Company Board shall not, directly or indirectly, (A) withdraw (or rescind (qualify, amend or modify in a any manner adverse to Parent), or propose publicly announce an intention to withdraw (or rescind (qualify, amend or modify in a any manner adverse to Parent), its recommendation in favor the Company Board Recommendation, (B) approve, recommend or declare advisable any Company Acquisition Proposal or publicly propose any of the Merger Agreementforegoing, (C) fail to include the Merger Company Board Recommendation in the Proxy Statement, (D) (1) fail to recommend against any Company Acquisition Proposal 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 Company Acquisition Proposal or (2) make any recommendation or public statement in connection with a tender or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication by the Offer Company Board, or (E) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days after Parent so requests in writing (it being understood that the Company will have no obligation to make such reaffirmation on more than two (2) separate occasions) (any such action in clause (A) through (E), a “Company Change of Recommendation”), . (ii) approve, declare Notwithstanding the advisability of foregoing or recommend anything to the holders of Shares the adoption ofcontrary set forth in this Agreement, or publicly announce an intention to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”including Section 6.4(e)(i), or (iv) publicly propose or announce an intention to take any of the foregoing actions (any action described in clauses (i), (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of obtaining the Company Stockholder Approval, the Company Board may (A) effect a Company Adverse Change of Recommendation Change only if following a bona fide written Company Acquisition Proposal that did not result from or arise out of a breach of this Section 6.4 and which the Terremark Company Board determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Company Superior Proposal, in each case, if and only if, (x) the Company Board has determined in good faith, after consultation with its financial advisors and outside legal advisors as required by the Merger Agreementcounsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and (y) the Company has complied with Section 6.4(e)(iii) or (B) following receipt of a bona fide written Company Acquisition Proposal which the Company Board determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Company Superior Proposal, terminate this Agreement for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (a “Company Alternative Acquisition Agreement”) with respect to such Company Superior Proposal, if, and only if, (x) the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (y) the Company has complied with Section 6.4(e)(iii) and (z) concurrently with entering into a Company Alternative Acquisition Agreement with respect to such Company Superior Proposal, the Company terminates this Agreement in accordance with the provisions of Section 8.1(i) and pays the Termination Fee to Parent in accordance with Section 8.3(a). (iii) Prior to the Company Board effecting a Company Change of Recommendation or the Company terminating this Agreement for purposes of entering into a Company Alternative Acquisition Agreement pursuant to Section 8.1(i), in each case as permitted under, and in accordance with, Section 6.4(e)(ii), the Company shall (A) have given Parent at least four (4) Business Days’ prior written notice (it being understood and agreed that any amendment, adjustments or revisions to the amount or form of consideration payable in connection with, or any other material terms or conditions of, the applicable Company Acquisition Proposal shall require a new notice pursuant to this clause (A) and an additional two (2) Business Day period) of the Company’s intention to take such action, which shall include a description of the terms and conditions of the Company Superior Proposal, the most current version of each proposed contract or agreement providing for or related to the Company Superior Proposal and the identity of the Person(s) making the Company Superior Proposal, (B) if requested by Parent, shall, and shall cause its outside legal and financial advisors and other Representatives to, meet with Parent and its Representatives during the foregoing four (4) Business Day period (or any subsequent two (2) Business Day period, as applicable) to discuss the foregoing Company Superior Proposal and negotiate in good faith any amendments, adjustments or revisions to the terms and conditions of this Agreement proposed by Parent in response thereto, such that such Company Acquisition Proposal would no longer constitute a Company Superior Proposal, and (C) after such four (4) Business Day period (and any subsequent two (2) Business Day period, as applicable), the Company Board determines in good faith, after consultation with its financial advisors and its outside counsel and taking into account any proposal by Parent to amend, adjust or revise the terms or conditions of this Agreement, that such Company Acquisition Proposal continues to constitute a Company Superior Proposal and that the failure to take such actions would be inconsistent with its fiduciary duties under applicable law. Notwithstanding In addition, notwithstanding the foregoing or anything to the contrarycontrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Terremark Company Board may also effect a Company Change of Recommendation in response to an Intervening Event if (x) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to take such action would be inconsistent with its fiduciary duties under applicable Law and (y) prior to making such Company Change of Recommendation the Company shall not (1) have given Parent at least four (4) Business Days’ prior written notice of the Company Board’s intention to effect a Company Change of Recommendation in response to such Intervening Event, which shall include a description in reasonable detail of the applicable Intervening Event, including sufficient information with respect to the reasons for the proposed Company Change of Recommendation to enable Parent to propose amendments, adjustments or revisions to this Agreement in such a manner to obviate the need for taking such action, (2) if requested by Parent, shall, and shall cause its outside legal and financial advisors and other Representatives, to meet with Parent and its Representatives during the foregoing four (4)-Business Day period to discuss the foregoing Intervening Event (including the reasons for the proposed Company Change of Recommendation) and negotiate in good faith any amendments, adjustments or revisions to the terms and conditions of this Agreement proposed by Parent in response thereto, such that the failure to effect a Company Change of Recommendation would no longer be permitted inconsistent with fiduciary duties under applicable Law and (3) after such four (4) Business Day period, the Company Board determines in good faith, after consultation with its financial advisors and its outside counsel and taking into account any proposal by Parent to amend, adjust or revise the terms or conditions of this Agreement, that the failure to take make aa Company Change of Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties under applicable law.