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

Fiduciary Exception to Parent Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Parent Requisite Vote is obtained, (x) the Board of Directors of Parent may withhold, withdraw, qualify or modify the Parent Recommendation or 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 Agreement, if (A) in the case of such an action taken in connection with a Parent Acquisition Proposal, the Parent Acquisition Proposal is not withdrawn and the Board of Directors of Parent determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such Parent Acquisition Proposal constitutes a Parent Superior Proposal; and (B) in all cases, the Board of Directors of Parent 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 the directors’ fiduciary duties under applicable Law (a “Parent Change in Recommendation”, it being understood that (1) 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 Parent Change in Recommendation and (2) in no event shall a Sky Event be taken into consideration in such determination) and/or (y) Parent may terminate this Agreement in accordance with Section 7.04(c) and concurrently with such termination cause Parent to enter into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Parent Superior Proposal Termination”); provided that no Parent Change in Recommendation and/or Parent Superior Proposal Termination may be made until after at least five business days following the Company’s receipt of written notice from the Parent advising that Parent’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Parent Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Parent Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Parent Superior Proposal, a reasonably detailed description of the development or change in connection with which Parent’s Board of Directors has given such notice). After providing such notice and prior to effecting such Parent Change in Recommendation and/or Parent Superior Proposal Termination, (x) Parent shall, during such five business day period, negotiate in good faith with the Company and its Representatives, to the extent the Company wishes to negotiate, with respect to any revisions to the terms of the transaction contemplated by this Agreement proposed by the Company, and (y) in determining whether it may still under the terms of this Agreement make a Parent Change in Recommendation and/or effect a Parent Superior Proposal Termination, the Board of Directors of Parent shall take into account any changes to the terms of this Agreement proposed by the Company and any other information provided by the Company 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 Parent Acquisition Proposal will be deemed to be a new Parent Acquisition Proposal for purposes of this Section 5.03(f), including with respect to the notice period referred to in this Section 5.03(f), except that the five business day period shall be three business days for such purposes in any such case.

Fiduciary Exception to Parent Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in Section 6.3(e), following receipt of a written Parent Acquisition Proposal by Parent after the date of this AgreementAgreement that did not result from a material breach of this Section 6.3 and Parent’s board of directors determining in good faith, after consultation with financial advisors of nationally recognized reputation and outside legal counsel, constitutes a Parent Superior Proposal, Parent’s board of directors may, at any time prior to the time the Parent Requisite Vote is obtained, make a Parent Change in Recommendation with respect to such Parent Superior Proposal in accordance with Section 6.3(f)(ii), or authorize, resolve, agree or propose publicly to take any such action, if all of the following conditions are met: (xi) Parent shall have (A) provided to the Board of Directors of Parent may withholdCompany four (4) Business Days’ prior written notice, withdraw, qualify or modify the Parent Recommendation or recommend or otherwise declare advisable any which shall state expressly (1) that it has received a written Parent 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) in the case of such an action taken in connection with a Parent Acquisition Proposal, the Parent Acquisition Proposal is not withdrawn and the Board of Directors of Parent determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such Parent Acquisition Proposal constitutes a Parent Superior Proposal; , (2) the material terms and conditions of the Parent Acquisition Proposal (Bincluding the consideration offered therein and the identity of the Person or group making the Parent Acquisition Proposal), and shall have contemporaneously provided an unredacted copy of the Parent Alternative Acquisition Agreement and all other documents (other than immaterial documents) in all cases, related to the Board of Directors of Parent 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 the directors’ fiduciary duties under applicable Law Superior Proposal (a “Parent Change in Recommendation”, it being understood and agreed that any amendment to the financial terms or any other material term or condition of such Parent Superior Proposal shall require a new notice and an additional three (13) a customary “stopBusiness Day period) and (3) that, look and listen” disclosure in compliance with Rule 14d-9(fsubject to clause (ii) below, Parent’s board of the Exchange Act shall not, in and of itself, constitute directors has determined to effect a Parent Change in Recommendation and (2B) in no event shall prior to making such a Sky Event be taken into consideration in such determination) and/or (y) Parent may terminate this Agreement in accordance with Section 7.04(c) and concurrently with such termination cause Parent to enter into an Alternative Parent Acquisition Agreement providing for a Parent Superior Proposal that did not result from or in connection with a material breach of this Agreement (a “Parent Superior Proposal Termination”); provided that no Parent Change in Recommendation and/or Parent Superior Proposal Termination may be made until after at least five business days following the Company’s receipt of written notice from the Parent advising that Parent’s Board of Directors intends to take such action and the basis therefor (which notice shall include a copy of any such Parent Superior Proposal and a copy of any relevant proposed transaction agreements, the identity of the party making such Parent Superior Proposal and the material terms thereof or, in the case of notice given other than in connection with a Parent Superior Proposal, a reasonably detailed description of the development or change in connection with which Parent’s Board of Directors has given such notice). After providing such notice and prior to effecting such Parent Change in Recommendation and/or Parent Superior Proposal Termination, (x) Parent shall, during such five business day period, negotiate used commercially reasonable efforts to engage in good faith with the Company and its Representatives, (to the extent the Company wishes to negotiate, with respect engage) during such notice period to any revisions consider adjustments to the terms and conditions of the transaction contemplated by this Agreement proposed by such that the CompanyParent Alternative Acquisition Agreement ceases to constitute a Parent Superior Proposal, and (y) in determining whether it may still under the terms of this Agreement to make a Parent Change in Recommendation and/or effect a Parent Superior Proposal TerminationRecommendation, the Board board of Directors directors of Parent shall take into account any changes to the terms of this Agreement proposed by the Company and any other information provided by the Company in response to such notice during notice; and (ii) Parent’s board of directors shall have determined, in good faith, after consultation with financial advisors of nationally recognized reputation, that, in light of such five business day period. Any amendment Parent Superior Proposal and taking into account any revised terms proposed by the Company, such Parent Superior Proposal continues to the financial terms or conditions or other material terms of any constitute a Parent Acquisition Superior Proposal will be deemed to be a new Parent Acquisition Proposal for purposes of this Section 5.03(f)and, including after consultation with respect to the notice period referred to in this Section 5.03(f)outside legal counsel, except that the five business day period shall failure to make such Parent Change in Recommendation would be three business days for such purposes in any such caseinconsistent with the directors’ fiduciary duties under applicable Law.