Common use of Fiduciary exception Clause in Contracts

Fiduciary exception. (A) Notwithstanding the provisions of Section 7.11(c)(i), Century shall not be prohibited from furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that, (1) such action is taken prior to the issuance of the Confirmation Order, (2) Century’s board of directors (its “Board”), after consultation with independent legal counsel, determines in good faith that such action is required for the Board to comply with its fiduciary obligations to Century’s stakeholders under applicable Legal Requirements, (3) such Acquisition Proposal is an all-cash offer, with all third-party financing (if any) being evidenced by bona fide signed commitments from reputable financial institutions that do not include conditions to such financing less favorable than the conditions set forth in the Commitment Letters, to acquire 100% of Century’s joint venture interests in the Cable Venture, and (4) the Board determines in good faith that such Acquisition Proposal, if accepted, is likely to be consummated, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with and based upon the written opinion (in customary form and subject to customary conditions) of an independent, nationally recognized financial advisor, that the Acquisition Proposal would, if consummated, result in a transaction superior to Century’s stakeholders from a financial point of view than the Transactions (any such materially more favorable Acquisition Proposal being referred to herein as a “Superior Proposal”). Prior to taking any action pursuant to this Section 7.11(c)(ii) with respect to an Acquisition Proposal, Century shall provide prior written notice to the Buyer to the effect that it is proposing to take such action and provide the additional information required by Section 7.11(c)(ii)(B) (to the extent not previously provided to the Buyer). (B) The Sellers and the Cable Venture shall notify the Buyer of any Acquisition Proposal or request for nonpublic information from any Person who is considering making an Acquisition Proposal (including, without limitation, all material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide the Buyer with a copy of any written Acquisition Proposal or amendments or supplements thereto (or, if such action is prohibited, a written summary of the material terms of the foregoing, including the identity of any Person submitting an Acquisition Proposal), and, if Century has become authorized pursuant to Section 7.11(c)(ii)(A) to enter into discussions concerning such Acquisition Proposal, Century shall thereafter inform the Buyer on a current basis of the status of any inquiries, discussions or negotiations with such Person, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give the Buyer a copy of any information related to the Companies delivered to such Person that has not previously been provided to the Buyer. (C) Century shall not enter into any final and definitive agreements relating to any such Acquisition Proposal (“Alternate Agreements”) unless it shall have first afforded the Buyer the opportunity to match or improve upon the terms and conditions of such Acquisition Proposal (the Buyer’s “Matching Right”). Not less than three (3) Business Days prior to the execution of any Alternate Agreements, Century shall deliver to the Buyer (1) copies of such Alternate Agreements, together with (2) a notice to the Buyer stating that the Buyer shall have three (3) Business Days from receipt of such notice to exercise its Matching Right. If the Buyer elects to exercise its Matching Right, Century shall not enter into any such Alternate Agreements or seek an Order of the Bankruptcy Court confirming a plan of reorganization or otherwise approving and authorizing the transactions contemplated by such Alternate Agreements on the terms set forth therein unless Century and the Cable Venture also submit the Plan (as modified by the Buyer in the exercise of its Matching Right) for consideration and approval by the Bankruptcy Court. If the Buyer declines to exercise its Matching Right with respect to the Alternate Agreements, the provisions of this Section 7.11(c)(ii)(C) shall thereafter apply to any proposed material amendment or modification of such Alternate Agreements. The exercise or non-exercise by the Buyer of its Matching Right shall not alter or affect its rights to terminate this Agreement or to receive the Expense Reimbursement or the Break-Up Fee in accordance with the applicable provisions of this Agreement.

Fiduciary exception. Notwithstanding anything to the contrary in Section 6.6.1, prior to the time, but not after, the Stockholder Approval is obtained, Seller may, in response to an unsolicited bona fide, written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made or renewed on or after the date of this Agreement and which did not result from a material breach of this Section 6.6, (Ai) Notwithstanding contact the provisions Person or group of Persons making such Acquisition Proposal solely to inform such Person or group of Persons of the terms of this Section 7.11(c)(i)6.6, Century shall (ii) provide access to non-public information regarding Seller to the Person who made such Acquisition Proposal; provided that such information has previously been made available to Purchaser or is provided to Purchaser substantially concurrently with the making of such information available to such Person and that, prior to furnishing any such material non-public information, Seller receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not be prohibited less favorable in any material respect to Seller than those contained in the Confidentiality Agreement and does not prohibit Seller from furnishing providing any information toto Purchaser in accordance with, and otherwise complying with, this Agreement (such confidentiality agreement, an “Acceptable Confidentiality Agreement”) and (iii) engage or entering into participate in any discussions or negotiations with, with any such Person that makes an unsolicited bona fide written regarding such Acquisition Proposal if, and only if, prior to the extent thattaking any action described in clauses (i), (1ii) such action is taken or (iii) above, Seller has provided prior written notice to the issuance of the Confirmation Order, (2) Century’s board of directors (its “Board”), after consultation with independent legal counsel, determines in good faith that such action is required for the Board to comply with its fiduciary obligations to Century’s stakeholders under applicable Legal Requirements, (3) such Acquisition Proposal is an all-cash offer, with all third-party financing (if any) being evidenced by bona fide signed commitments from reputable financial institutions that do not include conditions to such financing less favorable than the conditions set forth in the Commitment Letters, to acquire 100% of Century’s joint venture interests in the Cable Venture, Purchaser and (4) the Board determines in good faith after consultation with (A) Seller’s financial advisor and outside legal counsel that based on the information then available, that such Acquisition Proposal, if accepted, is likely Proposal either constitutes a Superior Proposal or would reasonably be expected to be consummated, taking into account all legal, financial, regulatory result in a Superior Proposal and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with and based upon the written opinion (in customary form and subject to customary conditionsB) of an independent, nationally recognized financial advisorSeller’s outside legal counsel, that the Acquisition Proposal would, if consummated, result in a transaction superior to Century’s stakeholders from a financial point of view than the Transactions (any such materially more favorable Acquisition Proposal being referred to herein as a “Superior Proposal”). Prior to taking any action pursuant to this Section 7.11(c)(ii) with respect to an Acquisition Proposal, Century shall provide prior written notice to the Buyer to the effect that it is proposing failure to take such action and provide would reasonably be expected to be inconsistent with the additional information required by Section 7.11(c)(ii)(B) (to the extent not previously provided to the Buyer). (B) The Sellers and the Cable Venture shall notify the Buyer of any Acquisition Proposal or request for nonpublic information from any Person who is considering making an Acquisition Proposal (including, without limitation, all material terms and conditions thereof and the identity fiduciary duties of the Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and Board to Seller’s stockholders under applicable Law. Seller shall provide the Buyer Purchaser with a an accurate and complete copy of any written Acquisition Proposal or amendments or supplements thereto Acceptable Confidentiality Agreement entered into as contemplated by this Section 6.6 promptly (or, if such action is prohibited, a written summary and in any event within 12 hours) of the material terms of the foregoing, including the identity of any Person submitting an Acquisition Proposal), and, if Century has become authorized pursuant to Section 7.11(c)(ii)(A) to enter into discussions concerning such Acquisition Proposal, Century shall thereafter inform the Buyer on a current basis of the status of any inquiries, discussions or negotiations with such Person, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give the Buyer a copy of any information related to the Companies delivered to such Person that has not previously been provided to the Buyerexecution hereof. (C) Century shall not enter into any final and definitive agreements relating to any such Acquisition Proposal (“Alternate Agreements”) unless it shall have first afforded the Buyer the opportunity to match or improve upon the terms and conditions of such Acquisition Proposal (the Buyer’s “Matching Right”). Not less than three (3) Business Days prior to the execution of any Alternate Agreements, Century shall deliver to the Buyer (1) copies of such Alternate Agreements, together with (2) a notice to the Buyer stating that the Buyer shall have three (3) Business Days from receipt of such notice to exercise its Matching Right. If the Buyer elects to exercise its Matching Right, Century shall not enter into any such Alternate Agreements or seek an Order of the Bankruptcy Court confirming a plan of reorganization or otherwise approving and authorizing the transactions contemplated by such Alternate Agreements on the terms set forth therein unless Century and the Cable Venture also submit the Plan (as modified by the Buyer in the exercise of its Matching Right) for consideration and approval by the Bankruptcy Court. If the Buyer declines to exercise its Matching Right with respect to the Alternate Agreements, the provisions of this Section 7.11(c)(ii)(C) shall thereafter apply to any proposed material amendment or modification of such Alternate Agreements. The exercise or non-exercise by the Buyer of its Matching Right shall not alter or affect its rights to terminate this Agreement or to receive the Expense Reimbursement or the Break-Up Fee in accordance with the applicable provisions of this Agreement.

Fiduciary exception. Notwithstanding anything to the contrary set forth in this Section 6.1, at any time prior to the Acceptance Time, the Company Board may effect a Company Board Recommendation Change and/or terminate this Agreement in accordance with (and to the extent permitted by) Section 8.1(f) and enter into a definitive agreement with respect to a Superior Proposal if: (i) in response to an Qualifying Proposal (and no other Acquisition Proposal) if (A) Notwithstanding the provisions of Section 7.11(c)(i), Century Company Board shall not be prohibited from furnishing information to, or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that, have determined in good faith (1) such action is taken prior to the issuance of the Confirmation Order, (2) Century’s board of directors (its “Board”), after consultation with independent legal counsel, determines in good faith outside counsel and its financial advisor) that (x) such action is required for Qualifying Proposal would constitute a Superior Proposal and (y) the failure to effect a Company Board to comply Recommendation Change would be inconsistent with its fiduciary obligations to Century’s stakeholders under applicable Legal Requirements, (3) such Acquisition Proposal is an all-cash offer, with all third-party financing (if any) being evidenced by bona fide signed commitments from reputable financial institutions that do not include conditions to such financing less favorable than the conditions set forth in the Commitment Letters, to acquire 100% of Century’s joint venture interests in the Cable Venture, and (4) the Board determines in good faith that such Acquisition Proposal, if accepted, is likely to be consummated, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with and based upon the written opinion (in customary form and subject to customary conditions) of an independent, nationally recognized financial advisor, that the Acquisition Proposal would, if consummated, result in a transaction superior to Century’s stakeholders from a financial point of view than the Transactions (any such materially more favorable Acquisition Proposal being referred to herein as a “Superior Proposal”). Prior to taking any action pursuant to this Section 7.11(c)(ii) with respect to an Acquisition Proposal, Century shall provide prior written notice to the Buyer to the effect that it is proposing to take such action and provide the additional information required by Section 7.11(c)(ii)(B) (to the extent not previously provided to the Buyer). law; (B) The Sellers and the Cable Venture Company has notified the Parent in writing that it intends to effect a Company Board Recommendation Change (a “Determination Notice”), which Determination Notice shall notify (w) describe in reasonable detail the Buyer of any Acquisition Proposal or request reasons for nonpublic information from any Person who is considering making an Acquisition Proposal such Company Board Recommendation Change, (including, without limitation, all x) provide the material terms and conditions thereof of such Qualifying Proposal (including the consideration offered therein and the identity of the Person or group making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide the Buyer with a copy of any written Acquisition Proposal or amendments or supplements thereto (or, if such action is prohibited, a written summary of the material terms of the foregoing, including the identity of any Person submitting an Acquisition Qualifying Proposal), and(y) provide unredacted copies of all agreements to be entered into by the Company or any of its Subsidiaries in connection with such Qualifying Proposal, if Century has become authorized pursuant to Section 7.11(c)(ii)(Aand (z) provide copies of documentation in respect of any financing arrangements delivered by the Qualified Person (or by such Qualified Person’s Affiliates or Representatives) to enter into finance such Qualifying Proposal (which may be redacted in a manner consistent with Section 4.5) (it being understood that the Determination Notice shall not, in and of itself, constitute a Company Board Recommendation Change for purposes of this Agreement); (4) if requested by the Parent, the Company shall have made its Representatives, including its senior management, outside counsel and financial advisor) available for discussions concerning such Acquisition Proposal, Century shall thereafter inform the Buyer on a current basis of the status of any inquiries, discussions or and negotiations with such Person, and the Parent’s Representatives regarding any material changes proposed modifications to the terms and conditions of such Acquisition Proposal, and shall promptly give this Agreement during the Buyer a copy of any information related four (4)-Business Day period following delivery by the Company to the Companies Parent of such Determination Notice; and (5) if the Parent shall have delivered to the Company a written, binding and irrevocable offer to alter the terms or conditions of this Agreement during such Person four (4) -Business Day period, the Company Board shall have determined in good faith (after consultation with outside counsel and its financial advisor), after considering the terms of such offer by the Parent, that (x) such Qualifying Proposal constitutes a Superior Proposal and (y) the failure to effect a Company Board Recommendation Change would still be inconsistent with its fiduciary obligations under applicable law; provided that any material amendment to the terms of such Qualifying Proposal (whether or not in response to any changes proposed by the Parent pursuant to clause (4) above), it being understood and agreed that any change in the type or amount of per share consideration or purchase price shall be considered material, after which the conditions set forth in clause (2) above remain satisfied shall require a new Determination Notice and an additional two (2) -Business Day period from the date of such Determination Notice during which the terms of clause (4) above and this clause (5) shall apply, mutatis mutandis; or (ii) in response to any Intervening Event if: (A) the Company Board shall have determined in good faith (after consultation with outside counsel) that the failure to effect a Company Board Recommendation Change would be inconsistent with its fiduciary obligations under applicable law; (B) the Company has not previously been provided to Parent a Determination Notice describing in reasonable detail the Buyer. reasons for such Company Board Recommendation Change; (C) Century shall not enter into any final and definitive agreements relating to any such Acquisition Proposal (“Alternate Agreements”) unless it if requested by the Parent, the Company shall have first afforded made its Representatives, including its senior management, outside counsel and financial advisor) available for discussions and negotiations with the Buyer the opportunity Parent’s Representatives regarding any proposed modifications to match or improve upon the terms and conditions of such Acquisition Proposal this Agreement during the four (4) -Business Day period following delivery by the Buyer’s “Matching Right”). Not less than three (3) Business Days prior Company to the execution Parent of any Alternate Agreements, Century such Determination Notice; and (D) if the Parent shall deliver have delivered to the Buyer Company a written, binding and irrevocable offer to alter the terms or conditions of this Agreement during such four (1) copies 4)-Business Day period, the Company Board shall have determined in good faith (after consultation with outside counsel and its financial advisor), after considering the terms of such Alternate Agreementsoffer by the Parent, together with (2) a notice to the Buyer stating that the Buyer shall have three (3) Business Days from receipt of such notice failure to exercise effect a Company Board Recommendation Change would still be inconsistent with its Matching Right. If the Buyer elects to exercise its Matching Right, Century shall not enter into any such Alternate Agreements or seek an Order of the Bankruptcy Court confirming a plan of reorganization or otherwise approving and authorizing the transactions contemplated by such Alternate Agreements on the terms set forth therein unless Century and the Cable Venture also submit the Plan (as modified by the Buyer in the exercise of its Matching Right) for consideration and approval by the Bankruptcy Court. If the Buyer declines to exercise its Matching Right with respect to the Alternate Agreements, the provisions of this Section 7.11(c)(ii)(C) shall thereafter apply to any proposed material amendment or modification of such Alternate Agreements. The exercise or non-exercise by the Buyer of its Matching Right shall not alter or affect its rights to terminate this Agreement or to receive the Expense Reimbursement or the Break-Up Fee in accordance with the fiduciary obligations under applicable provisions of this Agreementlaw.

Fiduciary exception. (Aa) Notwithstanding anything to the provisions contrary in Section 5.6, prior to the time, but not after, the Stockholder Approval is obtained, Seller may, in response to an unsolicited, written Acquisition Proposal (which Acquisition Proposal was made after the Execution Date) which did not result from a material breach of this Section 5.6, (i) contact the Person or group of Persons making such Acquisition Proposal to clarify the terms and conditions thereof and inform such Person or group of Persons of the terms of Section 7.11(c)(i)5.6, Century shall (ii) provide access to non-public information regarding Seller to the Person who made such Acquisition Proposal; provided that such information has previously been made available to Purchaser or is provided to Purchaser substantially concurrently with the making of such information available to such Person and that, prior to furnishing any such material non-public information, Seller receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such Person as the Confidentiality Agreement’s terms are on Purchaser (it being understood that such confidentiality agreement need not be prohibited from furnishing information to, prohibit the making or entering into amending of an Acquisition Proposal) and (iii) engage or participate in any discussions or negotiations with, with any such Person that makes an unsolicited bona fide written regarding such Acquisition Proposal if, and only to the extent thatif, (1) such action is taken prior to the issuance of the Confirmation Ordertaking any action described in clause (ii) or (iii) above, (2) Century’s board of directors (its “Board”), after consultation with independent legal counsel, determines in good faith that such action is required for the Board Seller has provided prior written notice to comply with its fiduciary obligations to Century’s stakeholders under applicable Legal Requirements, (3) such Acquisition Proposal is an all-cash offer, with all third-party financing (if any) being evidenced by bona fide signed commitments from reputable financial institutions that do not include conditions to such financing less favorable than the conditions set forth in the Commitment Letters, to acquire 100% of Century’s joint venture interests in the Cable Venture, Purchaser and (4) the Board determines in good faith after consultation with outside legal counsel that (A) based on the information then available that such Acquisition Proposal, if accepted, is likely Proposal constitutes a Superior Proposal and (B) the failure to take such action would reasonably be expected to be consummatedinconsistent with the directors’ fiduciary duties under applicable Law. (b) Notwithstanding anything to the contrary set forth in Section 5.6.3, taking into account all legalfollowing receipt of an unsolicited, financialwritten Acquisition Proposal by Seller after the Execution Date that does not otherwise violate the terms of this Section 5.6 and with respect to which Seller has received a written, regulatory and other aspects definitive form of the proposal Alternative Acquisition Agreement, and the Person making the proposal, and believes Board determining in good faith, after consultation with and based upon the written opinion (in customary form and subject to customary conditions) of an independent, nationally recognized financial advisoroutside legal counsel, that the such Acquisition Proposal would, if consummated, result in constitutes a transaction superior to Century’s stakeholders from a financial point of view than the Transactions (any such materially more favorable Acquisition Proposal being referred to herein as a “Superior Proposal”). Prior , the Board may, at any time prior to taking any action pursuant to this Section 7.11(c)(ii) the time the Stockholder Approval is obtained, make a Change in Recommendation with respect to an Acquisition such Superior Proposal, Century if all of the following conditions are met: (i) Seller shall provide have complied in all material respects with the provisions of this Agreement and shall have (A) provided to Purchaser three (3) Business Days’ prior written notice to the Buyer to the effect notice, which shall state expressly (1) that it is proposing to take such action and provide the additional information required by Section 7.11(c)(ii)(B) (to the extent not previously provided to the Buyer). (B) The Sellers and the Cable Venture shall notify the Buyer of any has received a written Acquisition Proposal or request for nonpublic information from any Person who is considering making an Acquisition Proposal that constitutes a Superior Proposal, (including, without limitation, all 2) the material terms and conditions thereof of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide the Buyer with a copy of any written Acquisition Proposal or amendments or supplements thereto (or, if such action is prohibited, a written summary of the material terms of the foregoing, including the identity of any Person submitting an Acquisition Proposal), andand (3) that, if Century subject to clause (b) below, the Board has become authorized pursuant determined to Section 7.11(c)(ii)(Ahold a meeting at which it intends to effect a Change in Recommendation, and (B) prior to enter into discussions concerning making such Acquisition Proposala Change in Recommendation, Century shall thereafter inform the Buyer on a current basis of the status of any inquiries, discussions or (x) engaged in good faith negotiations with Purchaser (to the extent Purchaser wishes to engage) during such Person, and any material changes notice period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing by Purchaser such that the Alternative Acquisition Agreement ceases to constitute a Superior Proposal, and (y) in determining whether to make a Change in Recommendation, the Board shall promptly give the Buyer a copy of take into account any information related changes to the Companies delivered terms of this Agreement proposed in writing by Purchaser; and (ii) the Board shall have determined, in good faith, after consultation with outside legal counsel, that, in light of such Superior Proposal and taking into account any revised terms proposed in writing by Purchaser, such Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that the failure to make such Person that has not previously been provided to Change in Recommendation would be inconsistent with the Buyerdirectors’ fiduciary duties under applicable Law. (Cc) Century shall not enter into Furthermore, upon the occurrence of any final and definitive agreements relating Intervening Event; provided, that such Intervening Event occurs prior to any the time the Stockholder Approval is obtained, the Board may make a Change in Recommendation if all of the following conditions are met: (i) the Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such Acquisition Proposal action would be a breach of the fiduciary duties of the Board under Delaware Law; (“Alternate Agreements”ii) unless it Seller shall have first afforded (A) provided to Purchaser five (5) Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Buyer Intervening Event and the opportunity rationale for the Change in Recommendation, and (2) state expressly that, subject to match or improve upon clause (B) below, the Board has determined to hold a meeting at which it intends to effect a Change in Recommendation and (B) prior to making such a Change in Recommendation, engaged in good faith negotiations with Xxxxxxxxx (to the extent Purchaser wishes to engage) during such five (5) Business Day period to consider adjustments to the terms and conditions of this Agreement which may be proposed in writing by Purchaser in such Acquisition Proposal (a manner that the Buyer’s “Matching Right”). Not less than three (3) Business Days prior failure of the Board to make a Change in Recommendation in response to the execution of any Alternate Agreements, Century shall deliver to the Buyer (1) copies of such Alternate Agreements, together with (2) a notice to the Buyer stating that the Buyer shall have three (3) Business Days from receipt of such notice to exercise its Matching Right. If the Buyer elects to exercise its Matching Right, Century shall not enter into any such Alternate Agreements or seek an Order of the Bankruptcy Court confirming a plan of reorganization or otherwise approving and authorizing the transactions contemplated by such Alternate Agreements on the terms set forth therein unless Century and the Cable Venture also submit the Plan (as modified by the Buyer in the exercise of its Matching Right) for consideration and approval by the Bankruptcy Court. If the Buyer declines to exercise its Matching Right with respect to the Alternate Agreements, the provisions of this Section 7.11(c)(ii)(C) shall thereafter apply to any proposed material amendment or modification of such Alternate Agreements. The exercise or non-exercise by the Buyer of its Matching Right shall not alter or affect its rights to terminate this Agreement or to receive the Expense Reimbursement or the Break-Up Fee Intervening Event in accordance with clause (iii) below would no longer be reasonably expected to be a breach of the applicable provisions directors’ fiduciary duties under Delaware Law; and (iii) the Board shall have determined in good faith, after consultation with outside legal counsel, that in light of this Agreementsuch Intervening Event and taking into account any revised terms proposed in writing by Xxxxxxxxx, the failure to make a Change in Recommendation, would be breach the directors’ fiduciary duties under Delaware Law.