Common use of No Change in Company Recommendation or Alternative Acquisition Agreement Clause in Contracts

No Change in Company Recommendation or Alternative Acquisition Agreement. The Company Board shall not: (i) except as expressly permitted by this Section 6.2, withdraw or modify (or publicly propose to withdraw or modify), in a manner adverse to Parent or Merger Sub, the approval or recommendation by the Company Board with respect to this Agreement and the Merger and other transactions contemplated hereby; (ii) except as permitted by Section 8.3(a), cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement (an “Alternative Acquisition Agreement”) providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.2(a) entered into in the circumstances referred to in Section 6.2(a)); or (iii) except as expressly permitted by this Section 6.2, approve, recommend or propose publicly to approve or recommend any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Agreement the Company Board may withdraw or modify its approval or recommendation with respect to this Agreement and the Merger and other transactions contemplated hereby, or approve or recommend any Superior Proposal made or received after the date of this Agreement, if the Company Board determines in good faith, after consultation with outside counsel, that such action is likely required under applicable Law (a “Change in Company Recommendation”); provided, however, that no Change in Company Recommendation may be made in response to a Superior Proposal until after 72 hours following Parent’s receipt of written notice from the Company (an “Adverse Recommendation Notice”) (x) advising Parent that the Company Board intends to make such Change in Company Recommendation and the reason for such change, (y) specifying the material terms and conditions of such Superior Proposal (including the proposed financing for such proposal) and providing Parent with a copy of any documents conveying such proposal and (z) identifying any party making such Superior Proposal. During such 72-hour period, the Company will cooperate with Parent with respect to such Superior Proposal with the intent of enabling Parent to engage in good faith negotiations to make such adjustments to the terms and conditions of the Merger as would enable the Company to proceed with the Merger on such adjusted terms. In determining whether to make a Change in Company Recommendation in response to a Superior Proposal, the Company Board shall take into account any such changes to the terms of this Agreement proposed by Parent (in response to an Adverse Recommendation Notice or otherwise) in determining whether such third party Acquisition Proposal still constitutes a Superior Proposal. Notwithstanding the foregoing, to the extent that an Adverse Recommendation Notice is received on a Saturday, Sunday or holiday, then such 72-hour period shall expire no earlier than 12:00 noon (Eastern Time) on the second business day immediately thereafter.

No Change in Company Recommendation or Alternative Acquisition Agreement. The Company Board and each committee of the Company Board (including the Special Committee) shall not: (i) except as expressly permitted by this Section 6.2(A) withhold, withdraw withdraw, qualify or modify (or publicly propose or resolve to withdraw withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger SubParent, the approval Company Recommendation with respect to the Mergers, (B) authorize, approve, recommend or recommendation otherwise declare advisable, or publicly propose to authorize, approve, recommend or otherwise declare advisable, any Company Acquisition Proposal or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, (C) fail to include the Company Recommendation in the Joint Proxy Statement, (D) if any Company Acquisition Proposal structured as a tender offer or exchange offer is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the Company’s stockholders within ten (10) Business Days of the commencement thereof pursuant to Rule 14d-2 of the Exchange Act or (E) fail to publicly reaffirm the Company Recommendation within ten (10) Business Days after receiving a written request to do so from Parent promptly after any Company Acquisition Proposal or any material modification thereto shall have first been publicly made, sent or given to the holders of Shares, or within two (2) Business Days of such request in the event such Company Acquisition Proposal or material modification is publicly made, sent or given less than ten (10) Business Days prior to the then-scheduled Stockholders Meeting (provided that Parent may only make such request once with respect to any Company Acquisition Proposal and once for each material modification thereto) (any of the foregoing actions or inactions in this Section 7.2(b)(i) by the Company Board with respect or any committee of the Company Board (including the Special Committee), a “Change of Company Recommendation”) or otherwise resolve or agree to take any of the foregoing actions in this Agreement and the Merger and other transactions contemplated hereby;Section 7.2(b)(i); or (ii) except as permitted by Section 8.3(a), cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (an “Alternative Acquisition Agreement”) providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.2(a7.2(a) entered into in the circumstances referred compliance with Section 7.2(a)) relating to in Section 6.2(a)); or any Company Acquisition Proposal (iiian “Alternative Company Acquisition Agreement”) except as expressly permitted by this Section 6.2, approve, recommend or propose publicly otherwise resolve or agree to approve or recommend any Acquisition Proposaldo so. Notwithstanding anything to the contrary set forth in this Agreement Section 7.2(b), the Company Board may withdraw (acting upon the recommendation of the Special Committee) or modify its approval or recommendation with respect the Special Committee may, prior to this Agreement and the Merger and other transactions contemplated hereby, or approve or recommend any Superior Proposal made or received but not after the date time the Requisite Company Stockholder Approvals are obtained, make a Change of this AgreementCompany Recommendation if, if and only if, (A) an Intervening Event has occurred and the Company Board determines (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith, after consultation consulting with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with such directors’ fiduciary duties under applicable Law, or (B) the Company receives a Company Acquisition Proposal and the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith, after consulting with its financial advisor and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal and that failure to take such action is likely required would be inconsistent with such directors’ fiduciary duties under applicable Law (a “Change in Company Recommendation”)Law; provided, however, provided that no Change in Company Recommendation may be made in response to a Superior Proposal until after 72 hours following Parent’s receipt of written notice from the Company (an “Adverse Recommendation Notice”) (x) advising Parent that neither the Company Board intends nor the Special Committee may take any such action (and the Special Committee may not recommend to make the Company Board to take such action) unless (I) prior to making such Change in of Company Recommendation and the reason for such change, (y) specifying the material terms and conditions of such Superior Proposal (including the proposed financing for such proposal) and providing Parent with a copy of any documents conveying such proposal and (z) identifying any party making such Superior Proposal. During such 72-hour periodRecommendation, the Company will cooperate provides prior written notice to Parent at least four (4) Business Days in advance (the “Notice Period”) of its intention to take such action and the basis thereof, which notice shall include, in the case of a Company Superior Proposal, the information required under Section 7.2(e) and, in the case of an Intervening Event, a reasonably detailed description of such Intervening Event, (II) during the Notice Period, the Company shall, and shall cause its employees, financial advisor and outside legal counsel to, be reasonably available to negotiate with Parent with respect to such Superior Proposal with the intent of enabling Parent to engage in good faith negotiations should Parent propose to make such adjustments amendments or other revisions to the terms and conditions of this Agreement such that, in the Merger as would enable the case of a Company to proceed with the Merger on such adjusted terms. In determining whether to make a Change in Company Recommendation in response to a Superior Proposal, such Company Acquisition Proposal no longer constitutes a Company Superior Proposal or, in the case of an Intervening Event, the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law as determined in the good faith judgment of the Company Board shall take (acting upon the recommendation of the Special Committee) or the Special Committee, after consulting with its financial advisor and outside legal counsel, and (III) the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee, as the case may be, has taken into account any such changes amendments or other revisions to the terms and conditions of this Agreement proposed agreed to by Parent (in response writing prior to an Adverse the end of the Notice Period and has determined in good faith, after consulting with its financial advisor and outside legal counsel, that a failure to make such Change of Company Recommendation Notice would still be inconsistent with the directors’ fiduciary duties under applicable Law; it being understood that any amendments or otherwise) in determining whether such third party other revisions to any Company Acquisition Proposal still constitutes will be deemed to be a Superior new Company Acquisition Proposal. Notwithstanding , including for purposes of the foregoingNotice Period; provided, however, subsequent to the extent that an Adverse Recommendation initial Notice is received on a SaturdayPeriod, Sunday or holiday, then such 72-hour period the Notice Period shall expire no earlier than 12:00 noon be reduced to two (Eastern Time2) on the second business day immediately thereafterBusiness Days.

No Change in Company Recommendation or Alternative Acquisition Agreement. The Company Board and each committee of the Company Board shall not: (i) except as expressly permitted by this Section 6.2(A) withhold, withdraw withdraw, qualify or modify (or publicly propose or resolve to withdraw withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger SubParent, the approval Company Recommendation, (B) authorize, approve, recommend or recommendation otherwise declare advisable, or publicly propose to authorize, approve, recommend or otherwise declare advisable, any Company Acquisition Proposal or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, (C) fail to include the Company Recommendation in the Joint Disclosure Statement or (D) if any Company Acquisition Proposal structured as a tender offer or exchange offer is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the Company’s stockholders within ten (10) Business Days of the commencement thereof (any of the foregoing actions or inactions in this Section 7.2(b)(i) by the Company Board with respect or any committee of the Company Board, a “Change of Company Recommendation”) or otherwise resolve or agree to take any of the foregoing actions in this Agreement and the Merger and other transactions contemplated hereby;Section 7.2(b)(i); or (ii) except as permitted by Section 8.3(a), cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (an “Alternative Acquisition Agreement”) providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.2(a7.2(a) entered into in the circumstances referred compliance with Section 7.2(a)) relating to in Section 6.2(a)); or any Company Acquisition Proposal (iiian “Alternative Company Acquisition Agreement”) except as expressly permitted by this Section 6.2, approve, recommend or propose publicly otherwise resolve or agree to approve or recommend any Acquisition Proposaldo so. Notwithstanding anything to the contrary set forth in this Agreement Section 7.2(b), the Company Board may withdraw or modify its (acting with the approval or recommendation with respect of the Independent Director) may, prior to this Agreement and the Merger and other transactions contemplated hereby, or approve or recommend any Superior Proposal made or received but not after the date time the Company Stockholder Approval is obtained, (A) make a Change of this Agreement, Company Recommendation if an Intervening Event has occurred and the Company Board determines (acting with the approval of the Independent Director) has determined in good faith, after consultation consulting with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with such directors’ fiduciary duties under applicable Law, or (B) make a Change of Company Recommendation and/or terminate this Agreement pursuant to Section 9.3(c), if the Company receives a Company Acquisition Proposal and the Company Board (acting with the approval of the Independent Director) has determined in good faith, after consulting with its financial advisor and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Proposal and that failure to take such action is likely required would be inconsistent with such directors’ fiduciary duties under applicable Law (a “Change in Company Recommendation”)Law; provided, however, that no Change in Company Recommendation may be made in response to a Superior Proposal until after 72 hours following Parent’s receipt of written notice from the Company (an “Adverse Recommendation Notice”) (x) advising Parent provided that the Company Board intends may not take any such action unless (I) prior to make making such Change in of Company Recommendation and/or terminating this Agreement pursuant to Section 9.3(c), as applicable, the Company provides prior written notice to the Special Committee at least four (4) Business Days in advance (the “Notice Period”) of its intention to take such action and the reason for such changebasis thereof, (y) specifying which notice shall include, in the material terms and conditions case of such a Company Superior Proposal, a written copy of the Company Superior Proposal (including and copies of the proposed financing for such proposal) and providing Parent with a copy then latest draft agreements reflecting the terms of any documents conveying such proposal and (z) identifying any party making such the Company Superior Proposal. During ) and, in the case of an Intervening Event, a reasonably detailed description of such 72-hour periodIntervening Event, (II) during the Notice Period, the Company will cooperate shall, and shall cause its employees, financial advisor and outside legal counsel to, be reasonably available to negotiate with Parent with respect to such Superior Proposal with the intent of enabling Parent to engage in good faith negotiations should Parent propose to make such adjustments amendments or other revisions to the terms and conditions of this Agreement such that, in the Merger as would enable the case of a Company to proceed with the Merger on such adjusted terms. In determining whether to make a Change in Company Recommendation in response to a Superior Proposal, such Company Acquisition Proposal no longer constitutes a Company Superior Proposal or, in the case of an Intervening Event, the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law as determined in the good faith judgment of the Company Board shall take (acting with the approval of the Independent Director), after consulting with its financial advisor and outside legal counsel, and (III) the Company Board (acting with the approval of the Independent Director), has taken into account any such changes amendments or other revisions to the terms and conditions of this Agreement proposed agreed to by Parent (in response writing prior to an Adverse the end of the Notice Period and has determined in good faith, after consulting with its financial advisor and outside legal counsel, that a failure to make such Change of Company Recommendation Notice and/or terminate this Agreement pursuant to Section 9.3(c), as applicable, would still be inconsistent with the directors’ fiduciary duties under applicable Law; it being understood that any amendments or otherwise) in determining whether such third party other revisions to any Company Acquisition Proposal still constitutes will be deemed to be a Superior new Company Acquisition Proposal. Notwithstanding , including for purposes of the foregoingNotice Period; provided, however, subsequent to the extent that an Adverse Recommendation initial Notice is received on a SaturdayPeriod, Sunday or holiday, then such 72-hour period the Notice Period shall expire no earlier than 12:00 noon be reduced to two (Eastern Time2) on the second business day immediately thereafterBusiness Days.

No Change in Company Recommendation or Alternative Acquisition Agreement. The Company Except as expressly permitted by this Section 5.2, the Company's Board of Directors and each committee thereof shall not: (i) except as expressly permitted by this Section 6.2, withdraw or modify (or publicly propose to withdraw or modify), in a manner adverse to Parent or Merger Subthe Buyer, the approval or recommendation by the Company Company's Board of Directors or any committee thereof with respect to the transactions contemplated by this Agreement Agreement, the other Transaction Documents and the Merger and other transactions contemplated herebyAncillary Agreements; (ii) except as permitted by Section 8.3(a), cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement (an “"Alternative Acquisition Agreement”") providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.2(a) entered into in the circumstances referred to in Section 6.2(a5.2(a)); or (iii) except as expressly permitted by this Section 6.2, approve, recommend or propose publicly to approve or recommend any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Agreement Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company's Board of Directors may withdraw withdraw, qualify or modify or propose publicly to withdraw, qualify or modify in any manner adverse to the Buyer, its approval or recommendation with respect to the transactions contemplated by this Agreement Agreement, the other Transaction Documents and the Merger and other transactions contemplated hereby, Ancillary Agreements or approve or recommend any Superior Proposal made or received after the date of this Agreement, if the Company Company's Board of Directors determines in good faith, after consultation with outside counsel, that such action is likely required failure to do so would reasonably be expected to result in a breach of its obligations under applicable Law law (a “"Change in Company Recommendation”"); provided, however, that no Change in Company Recommendation may be made in response to a Superior Proposal until after 72 hours three business days (the "Notice Period") following Parent’s the Buyer's receipt of written notice from the Company (an “"Adverse Recommendation Notice”") (x) advising Parent the Buyer that the Company Company's Board of Directors intends to make such Change in Company Recommendation and the reason for such change, (y) specifying the material terms and conditions of such Superior Proposal (including the proposed financing for such proposal) and providing Parent with a copy of any documents conveying such proposal and (z) identifying any party making such Superior Proposal. During ; provided further prior to effecting such 72-hour periodChange in Company Recommendation in response to a Superior Proposal, the Company will cooperate with Parent with respect to such Superior Proposal shall, and shall cause its legal and financial advisors to, during the Notice Period, negotiate with the intent of enabling Parent to engage Buyer in good faith negotiations (to the extent the Buyer desire to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal. In the Merger as would enable event that during the Notice Period any revisions are made to the Superior Proposal to which the proviso in this Section 5.2(b) applies and the Company's Board of Directors in its good faith judgment determines such revisions are material (it being agreed that any change in the purchase price in such Superior Proposal shall be deemed a material revision), the Company shall be required to proceed deliver a new Adverse Recommendation Notice to the Buyer and to comply with the Merger on requirements of this Section 5.2(b) with respect to such adjusted termsnew written notice, except that the Notice Period shall be reduced to two business days. In determining whether to make a Change in Company Recommendation in response to a Superior Proposal, the Company Company's Board of Directors shall take into account any such changes to the terms of this Agreement proposed by Parent the Buyer (in response to an Adverse Recommendation Notice or otherwise) in determining whether such third party Acquisition Proposal still constitutes a Superior Proposal. Notwithstanding the foregoing, to the extent that an Adverse Recommendation Notice is received on a Saturday, Sunday or holiday, then such 72-hour period shall expire no earlier than 12:00 noon (Eastern Time) on the second business day immediately thereafter.