Common use of Fiduciary Exception to Change in Recommendation Provision Clause in Contracts

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Requisite Vote is obtained, (i) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn and the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Proposal; or (II) in the case of such an action taken other than in connection with an Acquisition Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board of Directors of the Company as of the date of this Agreement and (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (a “Change in Recommendation”, it being understood that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, constitute a Change in Recommendation), and/or (ii) the Company may terminate this Agreement in accordance with Section 8.3(b) and concurrently with such termination cause the Company to enter into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice). After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Termination, (x) the Company shall, during such five business day period, negotiate in good faith with Parent and its Representatives, to the extent Parent wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by this Agreement proposed by Parent, and (y) in determining whether it may still under the terms of this Agreement make a Change in Recommendation and/or effect a Superior Proposal Termination, the Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during such five business day period. Any amendment to the financial terms or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2(f), including with respect to the notice period referred to in this Section 6.2(f), except that the five business day period shall be three business days for such purposes in any such case.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Company Requisite Vote is obtained, (i) the Board of Directors of the Company Board may withhold, withdraw, qualify or modify the Company effect a Change of Recommendation or approve, recommend or otherwise declare advisable any Acquisition in connection with a Superior Proposal made after the date of this Agreement that did was not result from solicited, initiated, encouraged or facilitated in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn and the Board of Directors of the Company Board determines in good faith, after consultation with its outside legal counsel and a its financial advisor of nationally recognized reputationadvisor, that (i) such Acquisition Proposal offer constitutes a Superior Proposal; or (II) in the case of such an action taken other than in connection with an Acquisition Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board of Directors of the Company as of the date of this Agreement Proposal and (Bii) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent is necessary or required in order for the directors to comply with its the directors’ fiduciary duties under applicable Law (a “Change in Recommendation”Law; provided, it being understood that a customary “stophowever, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, constitute a Change in Recommendation), and/or (ii) the Company may terminate this Agreement in accordance with Section 8.3(b) and concurrently with such termination cause the Company to enter into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in of Recommendation and/or Superior Proposal Termination may be made unless and until after at least five business days following Parent’s receipt of the Company has given Parent written notice from of such action four (4) Business Days in advance, such notice to comply in form, substance and delivery with the provisions of Sections 5.2(c) and 8.7 of this Agreement, setting forth in writing that management of the Company advising that the Company’s Board of Directors intends to take such action recommend to the Company Board that it make a Change of Recommendation and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such noticeproviding all information required to be provided under Section 5.2(c). After providing giving such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Terminationof Recommendation, (xi) the Company shall, during throughout such five business day four (4) Business Day period, negotiate in good faith with Parent and its Representatives, to the extent Parent wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by this Agreement proposed by ParentParent in response to a Superior Proposal, and (yii) in determining whether it may still under the terms of this Agreement to make a Change of Recommendation in Recommendation and/or effect response to a Superior Proposal TerminationProposal, the Company Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during such five business day periodnotice. Any material amendment to the financial terms or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2(f5.2(e), including with respect to the notice period referred to in this Section 6.2(f5.2(e), except that the five business day period four (4) Business Day advance written notice obligation set forth in this Section 5.2(e) shall be three business days reduced to two (2) Business Days for such purposes in any such casepurposes.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this AgreementSection 5.2(d), prior to the time, but not after, following receipt of a written Acquisition Proposal by the Company Requisite Vote is obtained, (i) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn Section 5.2 and the Company Board of Directors of the Company determines determining in good faith, after consultation with its financial advisors and outside counsel and a financial advisor of nationally recognized reputationlegal counsel, that such Acquisition Proposal constitutes a Superior Proposal; , the Company Board may, at any time prior to the time the Requisite Company Vote is obtained, make a Change in Recommendation or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 5.2(e)(ii), or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met: (IIi) in the case Company shall have (A) provided to Parent five (5) Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of such the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal), and shall have contemporaneously provided an action taken unredacted copy of the Alternative Acquisition Agreement and all other documents (other than in connection with an Acquisition Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable immaterial documents) related to the Board of Directors of the Company as of the date of this Agreement and Superior Proposal (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (a “Change in Recommendation”, it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a customary “stopnew notice and an additional three (3) Business Day period) and (3) that, look and listen” disclosure in compliance with Rule 14d-9(fsubject to clause (ii) of below, the Exchange Act shall not, in and of itself, constitute Company Board has determined to effect a Change in Recommendation), and/or (ii) the Company may Recommendation or to terminate this Agreement in accordance with Section 8.3(b7.3(b) and concurrently with such termination cause the Company in order to enter into an the Alternative Acquisition Agreement providing for Agreement, as applicable, and (B) prior to making such a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreementsor terminating this Agreement in accordance with Section 7.3(b), the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice). After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Terminationas applicable, (x) to the Company shallextent requested by Parent in good faith, during such five business day period, negotiate engaged in good faith negotiations with Parent and its Representatives, during such notice period to the extent Parent wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by amend this Agreement proposed by Parentin such a manner that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal, and (y) in determining whether it may still under the terms of this Agreement to make a Change in Recommendation and/or to effect such a Superior Proposal Terminationtermination in accordance with Section 7.3(b), the Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during notice; and (ii) the Company Board shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that, in light of such five business day period. Any amendment Superior Proposal and taking into account any revised terms proposed by Parent, such Superior Proposal continues to constitute a Superior Proposal and that the financial terms failure to make such Change in Recommendation or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of so terminate this Agreement in accordance with Section 6.2(f7.3(b), including as applicable, would be inconsistent with respect to the notice period referred to in this Section 6.2(f), except that the five business day period shall be three business days for such purposes in any such casedirectors’ fiduciary duties under applicable Law.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, time the Requisite Company Requisite Vote is obtained, (i) the Board board of Directors directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Superior Proposal made after the date of this Agreement that did was not result from solicited, initiated, encouraged or facilitated in connection with a material breach of this Agreement, if (A) (I) in the case board of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn and the Board of Directors directors of the Company determines in good faith, after consultation with outside counsel and a an independent financial advisor of nationally recognized reputation, that (i) such Acquisition Proposal offer constitutes a Superior Proposal; Proposal or (IIii) in the case of such an action taken other than in connection with an Acquisition Proposal, a material development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board board of Directors directors of the Company as of the date of this Agreement and is materially more favorable to the recurring financial condition of the Company and its Subsidiaries, taken as a whole, other than (A) developments or changes in the industries in which the Company and its Subsidiaries operate, (B) changes in the Board market price or trading volume of Directors the Shares, (C) the timing of any Regulatory Approval, (D) an Acquisition Proposal or (E) the fact that, in and of itself, the Company exceeds internal or published projections (an “Intervening Event”) and (iii) the Company determines in good faith, after consultation with outside counsel and a an independent financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent is necessary in order for the directors to comply with its their fiduciary duties under applicable Law (a “Change in of Recommendation”, it being understood that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, constitute a Change in Recommendation), and/or (ii) the Company may terminate this Agreement in accordance with Section 8.3(b) and concurrently with such termination cause the Company to enter into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company takeprovided, or agree or resolve to takehowever, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in of Recommendation and/or Superior Proposal Termination may be made until after at least five four (4) business days following Parent’s receipt of written notice from the Company advising that management of the Company’s Board of Directors Company currently intends to take such action recommend to its board of directors that it make a Change of Recommendation and the basis therefor (which notice shall include a copy of any such Superior Proposal x) all information required to be provided under Section 6.2(c) and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, (y) in the case of notice given other than in connection with a Superior ProposalChange of Recommendation relating to an Intervening Event, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice)all material information related thereto. After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Terminationof Recommendation, (xi) the Company shall, during throughout such five four (4) business day period, negotiate in good faith with Parent and its Representatives, to the extent Parent wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by this the Agreement proposed by ParentParent in response to a Superior Proposal or Intervening Event, and (yii) in determining whether it may still under the terms of this Agreement to make a Change of Recommendation in Recommendation and/or effect response to a Superior Proposal Terminationor Intervening Event, the Board board of Directors directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during such five business day periodnotice. Any material amendment to the financial terms or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2(f), including with respect to the notice period referred to in this Section 6.2(f), except that the five four (4) business day period shall be three (3) business days for such purposes in any such casepurposes.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Requisite Vote is obtained, (ix) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Superior Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn and the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Proposal; or (II) in the case of such an action taken other than in connection with an Acquisition Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board of Directors of the Company as of the date of this Agreement and (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (a “Change in Recommendation”, it being understood that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange 1934 Act shall not, in and of itself, constitute a Change in Recommendation), ) and/or (iiy) the Company may terminate this Agreement in accordance with Section 8.3(b) and concurrently concurrent with such termination cause the Company to enter into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days (or such shorter time period if the Company Stockholders Meeting is held within such five business day period) following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal therefor, including all information required to be provided under Section 6.2(c) and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than a Change in connection with Recommendation not related to a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice)all material information related thereto. After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Termination, (xi) the Company shall, during such five business day period (or such shorter time period if the Company Stockholders Meeting is held within such five business day period), negotiate in good faith with Parent and its Representatives, to the extent Parent wishes to negotiate, Representatives with respect to any revisions to the terms of the transaction contemplated by this the Agreement proposed by Parent, and (yii) in determining whether it may still under the terms of this Agreement to make a Change in Recommendation and/or effect a Superior Proposal Termination, the Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during such five business day period (or such shorter time period if the Company Stockholders Meeting is held within such five business day period). Any amendment to the financial terms or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2(f), including with respect to the notice period referred to in this Section 6.2(f), except that the five business day period (or such shorter time period if the Company Stockholders Meeting is held within such five business day period) shall be three business days (or such shorter time period if the Company Stockholders Meeting is held within such three business day period) for such purposes in any such casepurposes.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, following receipt of a written Acquisition Proposal by the Company Requisite Vote is obtained, (i) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn Section 5.02 and the Board of Directors of the Company Special Committee determines in good faith, faith after consultation with outside counsel and a an independent financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes a Superior Proposal; , the Special Committee or the Company Board (IIupon recommendation of the Special Committee) may, at any time prior to the time the Company Requisite Stockholder Approvals are obtained, make a Change in Recommendation, if all of the case following conditions are met: (i) the Company shall have (A) provided to Parent three (3) Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal and (2) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal), and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an action taken other than in connection with an Acquisition Proposaladditional two (2) Business Day period), a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board of Directors of the Company as of the date of this Agreement and (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure prior to take making such action would be inconsistent with its fiduciary duties under applicable Law (a “Change in Recommendation”, it being understood that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, constitute a Change in Recommendation), and/or (ii) the Company may terminate this Agreement in accordance with Section 8.3(b) and concurrently with such termination cause the Company to enter into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice). After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Termination, (x) the Company shall, during such five business day period, negotiate used commercially reasonable efforts to engage in good faith with Parent and its Representatives, (to the extent Parent wishes to negotiateengage) during such notice period, with respect which may be on a non-exclusive basis, to any revisions consider adjustments to the terms and conditions of the transaction contemplated by this Agreement proposed by Parentsuch that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal, and or (y) in determining whether it may still under the terms of this Agreement to make a Change in Recommendation and/or effect a Superior Proposal TerminationRecommendation, the Company Board of Directors of and the Company Special Committee shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during notice; and (ii) the Special Committee determines in good faith after consultation with outside counsel and an independent financial advisor of nationally recognized reputation that, in light of such five business day period. Any amendment Superior Proposal and taking into account any revised terms proposed by Parent, such Superior Proposal continues to constitute a Superior Proposal and that the failure to make such Change in Recommendation would reasonably be expected to be inconsistent with the directors’ fiduciary duties to the financial terms or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2(f), including with respect to the notice period referred to in this Section 6.2(f), except that the five business day period shall be three business days for such purposes in any such casePublic Stockholders under applicable Law.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Requisite Vote is obtainedBoard may effect a Change of Recommendation and, (i) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection a Change of Recommendation relating to a Superior Proposal and after complying with an Acquisition Proposalthe provisions of this Section 5.5(e), the Acquisition Proposal is not withdrawn and the Board of Directors of terminate this Agreement pursuant to Section 8.3(c), if the Company determines Board has determined in good faith, after consultation with its outside counsel financial advisors and a financial advisor of nationally recognized reputationoutside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal; or (IIx) in the case where the Change of such an action taken other than Recommendation is not made in connection with response to an Acquisition Proposal that could constitute a Superior Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board of Directors of the Company as of the date of this Agreement an Intervening Event has occurred and (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent with its the directors’ fiduciary duties under applicable Law Law, and (a “y) in the case where such Change of Recommendation is made in Recommendation”, it being understood response to an Acquisition Proposal that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, could constitute a Change in Recommendation)Superior Proposal, and/or (ii) the Company may terminate this Agreement in accordance with Section 8.3(b) and concurrently with such termination cause the Company to enter into an Alternative Acquisition Agreement providing for Proposal constitutes a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall and the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, that the Company Board shall not take any action set forth above unless and until (1) the basis therefor Company has given Buyer written notice of its intention to take such action five (5) Business Days in advance, which notice shall include comply with the provisions of Section 5.5(c) (if applicable), setting forth in writing that management of the Company or a copy committee of any the Company Board intends to recommend to the Company Board that it take such action; (2) after giving such notice and prior to taking such action, the Company has afforded Buyer the opportunity to negotiate in good faith with the Company (to the extent Buyer wishes to negotiate) to enable Buyer to propose in writing a binding offer to make such revisions to the terms of this Agreement such that it would cause such Superior Proposal and to no longer constitute a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof (or, in the case of notice given other than in connection with a Superior Change of Recommendation not involving an Acquisition Proposal, such that the failure to effect a reasonably detailed description Change of Recommendation would not be inconsistent with the directors’ fiduciary duties under applicable Law); and (3) at the end of the development or change in connection with which the Company’s Board of Directors has given such notice). After providing such notice five (5) Business Day period and prior to effecting taking any such Change in Recommendation and/or Superior Proposal Terminationaction, (x) the Company shall, during such five business day period, negotiate Board has considered in good faith with Parent and its Representatives, any such binding written offer to the extent Parent wishes to negotiate, with respect to any make revisions to the terms of the transaction contemplated by this Agreement proposed by Parent, and (y) in determining whether it may still under the terms of this Agreement make a Change in Recommendation and/or effect a Superior Proposal Termination, the Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent Buyer and any other information provided it deems appropriate, and has determined in good faith, after consultation with outside legal counsel and its outside financial advisors, that in the case of a Superior Proposal, the Superior Proposal continues to constitute a Superior Proposal (or, in the case of a Change of Recommendation not involving an Acquisition Proposal, that the failure to effect a Change of Recommendation would still be inconsistent with the directors’ fiduciary duties under applicable Law) if such changes proposed in such binding offer by Parent in response Buyer were to such notice during such five business day periodbe given effect. Any amendment In the event of any modification to the financial terms or conditions or any other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2(f)Proposal, including with respect to the notice period referred to proviso in this Section 6.2(f), except that the five business day period immediately preceding sentence shall be three business days for such purposes in any such caseapply again.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Requisite Vote Parent Stockholder Approval is obtained, (i) the Parent Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Parent Recommendation or approve, recommend or otherwise declare advisable any Parent Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this AgreementSection 5.2, if (A) (I) in the case of such an action taken in connection with an a Parent Acquisition Proposal, the Parent Acquisition Proposal is not withdrawn and the Parent Board of Directors of the Company determines in good faith, after consultation with outside counsel and a its financial advisor of nationally recognized reputationadvisor, that such Parent Acquisition Proposal constitutes a Superior Proposal; or (II) in the case of such an action taken other than in connection with an a Parent Acquisition Proposal, a development material event or change in circumstances circumstance arises or occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable that, prior to the Board of Directors of the Company as of the date of this Agreement Agreement, was neither known nor reasonably foreseeable by the Parent Board (an “Intervening Event”); provided, that (x) in no event shall the receipt, existence or terms of a Parent Acquisition Proposal or any matter arising therefrom or consequence thereof constitute an Intervening Event, and (y) in no event shall the occurrence of adverse effects on the business, properties, financial conditions or results of operations of Company and its Subsidiaries, taken as a whole, constitute an Intervening Event unless such occurrence has had or would reasonably be expected to have a Material Adverse Effect on the Company and (B) the Parent Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputationcounsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law (a “Change in RecommendationParent Recommendation Change”, it being understood that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, constitute a Change in Recommendation), and/or (ii) the Company Parent may terminate this Agreement in accordance with Section 8.3(b7.1(j) (Parent Superior Proposal) and concurrently with such termination cause the Company Parent to enter into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from or in connection with a material breach of this Agreement Section 5.2 (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve . Prior to take, effecting any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Parent Recommendation Change in Recommendation and/or Superior Proposal Termination may be made until after at least five Termination, (x) Parent shall provide the Company with three (3) business days following Parent’s receipt of days’ prior written notice from the Company advising that the Company’s Parent Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Parent Board of Directors has given such notice). After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Termination, (xy) the Company shall, during such five three (3) business day period, Parent shall negotiate in good faith with Parent the Company and its Representatives, to the extent Parent the Company wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by this Agreement proposed by Parentthe Company, and (yz) in determining whether it may still under at the terms end of this Agreement make a Change in Recommendation and/or effect a Superior Proposal Termination, the Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during such five three (3) business day period, the Parent Board determines in good faith, after consultation with outside counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law. Any The first amendment (but not any subsequent amendments) to the financial terms or conditions or other material terms of any Parent Acquisition Proposal will be deemed to be a new Parent Acquisition Proposal for purposes of this Section 6.2(f5.2(g), including with respect to the notice period referred to in this Section 6.2(f5.2(g), except that the five three (3) business day period shall be three one (1) business days day for such purposes purposes. Notwithstanding any Parent Recommendation Change, but subject to Parent’s right to terminate this Agreement pursuant to Section 7.1(j) (Parent Superior Proposal), Parent shall hold the Parent Stockholder Meeting in any such caseaccordance with Section 5.5.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this AgreementSection 5.03(d), prior to the time, but not after, following receipt of a written Acquisition Proposal by the Company Requisite Vote is obtained, (i) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if (A) (I) in the case of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn Section 5.03 and the Board of Directors of the Company determines determining in good faith, after consultation with its financial advisors and outside counsel and a financial advisor of nationally recognized reputationlegal counsel, that such Acquisition Proposal constitutes a Superior Proposal; or (II) in the case of such an action taken other than in connection with an Acquisition Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable to the Board of Directors may, at any time prior to the time the Company Stockholder Approval is obtained, make an Adverse Recommendation Change or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 5.03(e)(ii), or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met: (i) the Company as shall have (A) provided to Parent four (4) Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of the date Acquisition Proposal (including the consideration offered therein and the identity of this the Person or group making the Acquisition Proposal), and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (Bother than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a new notice and an additional two (2) Business Day period) and (3) that, subject to clause (ii) below, the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure has determined to take such action would be inconsistent with its fiduciary duties under applicable Law (a “effect an Adverse Recommendation Change in Recommendation”, it being understood that a customary “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not, in and of itself, constitute a Change in Recommendation), and/or (ii) the Company may or to terminate this Agreement in accordance with Section 8.3(b9.01(d) and concurrently with such termination cause the Company in order to enter into an the Alternative Acquisition Agreement providing for a Superior Proposal that did not result from Agreement, as applicable, and (B) prior to making such an Adverse Recommendation Change or in connection with a material breach of terminating this Agreement (a “Superior Proposal Termination”in accordance with Section 9.01(d); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice). After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Terminationas applicable, (x) to the Company shallextent requested by Parent in good faith, during such five business day period, negotiate engaged in good faith negotiations with Parent and its Representatives, during such notice period to the extent Parent wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by amend this Agreement proposed by Parentin such a manner that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal, and (y) in determining whether it may still under the terms of this Agreement to make an Adverse Recommendation Change and/or to effect such a Change termination in Recommendation and/or effect a Superior Proposal Terminationaccordance with Section 9.01(d), the Board of Directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during notice; and (ii) the Board of Directors shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that, in light of such five business day period. Any amendment Superior Proposal and taking into account any revised terms proposed by Parent, such Superior Proposal continues to constitute a Superior Proposal and that the financial terms failure to make such an Adverse Recommendation Change or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of so terminate this Agreement in accordance with Section 6.2(f9.01(d), including as applicable, would be inconsistent with respect to the notice period referred to in this Section 6.2(f), except that the five business day period shall be three business days for such purposes in any such casedirectors’ fiduciary duties under applicable Law.

Fiduciary Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this AgreementSection 6.2(e), prior to the time, but not after, following receipt of a written Acquisition Proposal by the Company Requisite Vote is obtained, (i) the Board of Directors of the Company may withhold, withdraw, qualify or modify the Company Recommendation or approve, recommend or otherwise declare advisable any Acquisition Proposal made after the date of this Agreement that did not result from or in connection with a material breach of this Agreement, if Section 6.2 (Aother than any breach that is both immaterial and unintentional) (I) in and that the case Company’s board of such an action taken in connection with an Acquisition Proposal, the Acquisition Proposal is not withdrawn and the Board of Directors of the Company directors determines in good faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputationadvisors, that such Acquisition Proposal constitutes a Superior Proposal; , the Company’s board of directors may, at any time prior to the time the Company Requisite Vote is obtained, make a Change in Recommendation or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal in accordance with Section 6.2(f)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met: (IIi) in the case Company shall have (A) provided to Parent three (3) Business Days’ prior written notice, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of such the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal) and shall have contemporaneously provided an action taken unredacted copy of the Alternative Acquisition Agreement and all other documents (other than in connection with an Acquisition Proposal, a development or change in circumstances occurs or arises after the date of this Agreement that was not known by nor was reasonably foreseeable immaterial documents) related to the Board of Directors of the Company as of the date of this Agreement and Superior Proposal (B) the Board of Directors of the Company determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (a “Change in Recommendation”, it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Superior Proposal shall require a customary “stopnew notice and an additional two (2) Business Day period) and (3) that, look and listen” disclosure in compliance with Rule 14d-9(fsubject to clause (ii) below, the Company’s board of the Exchange Act shall not, in and of itself, constitute directors has determined to make a Change in Recommendation), and/or (ii) the Company may Recommendation or to terminate this Agreement in accordance with Section 8.3(b) and concurrently with such termination cause the Company in order to enter into an the Alternative Acquisition Agreement providing for Agreement, as applicable and (B) prior to making such a Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Superior Proposal Termination”); provided that in no event shall the Company take, or agree or resolve to take, any action under this Section 6.2(f) other than in compliance with this Section 6.2; provided further that no Change in Recommendation and/or Superior Proposal Termination may be made until after at least five business days following Parent’s receipt of written notice from the Company advising that the Company’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Superior Proposal and a copy of any relevant proposed transaction agreementsor terminating this Agreement in accordance with Section 8.3(b), the identity of the party making such Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Superior Proposal, a reasonably detailed description of the development or change in connection with which the Company’s Board of Directors has given such notice). After providing such notice and prior to effecting such Change in Recommendation and/or Superior Proposal Terminationas applicable, (x) the Company shall, during such five business day period, negotiate used commercially reasonable efforts to engage in good faith with Parent and its Representatives, (to the extent Parent wishes to negotiateengage) during such notice period, with respect which may be on a non-exclusive basis, to consider any revisions adjustments proposed by Parent to the terms and conditions of the transaction contemplated by this Agreement proposed by Parent, such that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal and (y) in determining whether it may still under the terms of this Agreement to make a Change in Recommendation and/or or to effect a Superior Proposal Terminationtermination in accordance with Section 8.3(b), the Board board of Directors directors of the Company shall take into account any changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in response to such notice during notice; and (ii) the Company’s board of directors shall have determined, in good faith, after consultation with its financial advisors and outside legal counsel, that, in light of such five business day period. Any amendment Superior Proposal and taking into account any revised terms proposed by Parent, such Superior Proposal continues to constitute a Superior Proposal and that the financial terms failure to make such Change in Recommendation or conditions or other material terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of so terminate this Agreement in accordance with Section 6.2(f8.3(b), including as applicable, would be inconsistent with respect to the notice period referred to in this Section 6.2(f), except that the five business day period shall be three business days for such purposes in any such casedirectors’ fiduciary duties under applicable Law.