Common use of Superior Transaction Clause in Contracts

Superior Transaction. Subject to the LLC Agreement and notwithstanding anything to the contrary in this Agreement, in the event that the Merger Agreement is terminated pursuant to Section 9.01(d)(i) of the Merger Agreement, and the Company concurrently enters into a definitive agreement with respect to the Superior Proposal (whether for cash or non-cash consideration) that was the basis for invoking Section 9.01(d)(i) (or, if thereafter (in one or more iterations) the Company subsequently terminates the definitive agreement for a Superior Proposal (in accordance with the terms thereof) and concurrently enters into a further definitive agreement for an alternative Superior Proposal, as a result of a determination by the Company Board (upon the recommendation of the Transactions Committee) that the proposed alternative transaction contemplated by such subsequent definitive agreement meets the definition of a Superior Proposal with respect to previously entered definitive agreement) (the then-applicable transaction contemplated by a definitive agreement in effect as described above, a “Superior Transaction”), then Stockholder agrees that, during the Extension Period: (i.) With respect to any tender offer or exchange offer made pursuant to a Superior Transaction, provided that such tender offer or exchange offer includes an Unaffiliated Holders Acceptance Condition: (i) to promptly (and, in any event, not later than three (3) Business Days after commencement of such offer) validly tender or cause to be validly tendered into such offer, pursuant to and in accordance with the terms of the offer and Rule 14d-2 under the Exchange Act, all of the outstanding shares of Company Common Stock Beneficially Owned by Stockholder (free and clear of any Liens or restrictions); (ii) if Stockholder acquires Beneficial Ownership of any additional outstanding shares of Company Common Stock during the Extension Period, to promptly (and, in any event, not later than two (2) Business Days after Stockholder acquires Beneficial Ownership of such additional outstanding shares of Company Common Stock) validly tender or cause to be validly tendered into the offer, pursuant to and in accordance with the terms of the offer, all of such additional shares of Company Common Stock (free and clear of any Liens or restrictions); and (iii) not to withdraw, and not to cause or permit to be withdrawn, any shares of Company Common Stock required to be tendered pursuant to clause (i) or (ii) from such offer unless and until (A) the offer expires without the purchaser having accepted for payment shares of Company Common Stock tendered in the offer or (B) termination of the Extension Period in accordance with Section 7.03 hereof. (ii.) With respect to any meeting of holders of Company Common Stock called to consider such Superior Transaction, any definitive agreement relating to such Superior Transaction, or any proposal in furtherance of such Superior Transaction: (i) cause all shares of Company Common Stock Beneficially Owned by Stockholder held as of the record date for such meeting to be present and voted at such meeting, and (ii) with respect to each proposal to approve such Superior Transaction, any definitive agreement relating to such Superior Transaction, or any proposal in furtherance of such Superior Transaction, to cast votes with respect to, or to consent to, each such proposal in the same proportion (for, against, withheld and/or abstain) as the votes that are collectively cast by all of the Unaffiliated Holders. (iii.) Except as otherwise expressly required by the LLC Agreement, during the Extension Period, Stockholder will not vote any outstanding shares of Company Common Stock Beneficially Owned by Stockholder in favor of, or consent to, and will vote against and not consent to, the approval of any (i) Acquisition Proposal (other than the Superior Transaction), (ii) reorganization, recapitalization, dissolution, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company other than the Superior Transaction, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of any of the transactions contemplated by the Superior Transaction or (iv) other matter relating to, or in connection with, any of the foregoing matters. Stockholder shall ensure that, during the Extension Period, any other Person having voting power with respect to any outstanding shares of Company Common Stock Beneficially Owned by Stockholder will not vote any such shares in favor of or consent to, and will vote against, the approval of the matters described in clauses (i) through (iv) of the preceding sentence. (iv.) If requested by the party who is the purchaser in the Superior Transaction, Stockholder hereby agrees to grant a proxy, irrevocable during the Extension Period, appointing the purchaser in such Superior Transaction (for so long as such purchaser remains the purchaser in a Superior Transaction) as Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in Stockholder’s name, to vote, express consent or dissent, or otherwise to utilize such voting power (in each case of voting, expressing consents, dissenting or otherwise utilizing such voting power, in the manner contemplated by Section 3.01(ii.) and Section 3.01(iii.) above) as purchaser or its proxy or substitute shall, in their sole discretion, deem proper with respect to the outstanding shares of Company Common Stock Beneficially Owned by Stockholder. Any proxy granted by Stockholder shall not be exercised to vote, consent or act on any matter except as contemplated by Section 3.01(ii.) and Section 3.01(iii.) above. Any such proxy granted by Stockholder shall automatically be revoked immediately upon the end of the Extension Period, or if the purchaser no longer remains the purchaser in a Superior Transaction.

Superior Transaction. Subject to the LLC Agreement and notwithstanding anything to the contrary in this Agreement, in the event that the Merger Agreement is terminated pursuant to Section 9.01(d)(i) of the Merger Agreement, and the Company concurrently enters into a definitive agreement with respect to the Superior Proposal (whether for cash or non-cash consideration) that was the basis for invoking Section 9.01(d)(i) (or, if thereafter (in one or more iterations) the Company subsequently terminates the definitive agreement for a Superior Proposal (in accordance with the terms thereof) and concurrently enters into a further definitive agreement for an alternative Superior Proposal, as a result of a determination by the Company Board (upon the recommendation of the Transactions Committee) that the proposed alternative transaction contemplated by such subsequent definitive agreement meets the definition of a Superior Proposal with respect to previously entered definitive agreement) (the then-applicable transaction contemplated by a definitive agreement in effect as described above, a “Superior Transaction”), then Stockholder agrees that, during the Extension Period: (i.) With respect to any tender offer or exchange offer made pursuant to a Superior Transaction, provided that such tender offer or exchange offer includes an Unaffiliated Holders Acceptance Condition: (i) to promptly (and, in any event, not later than three (3) Business Days after commencement of such offer) validly tender or cause to be validly tendered into such offer, pursuant to and in accordance with the terms of the offer and Rule 14d-2 under the Exchange Act, all of the outstanding shares of Company Common Stock Beneficially Owned by Stockholder (free and clear of any Liens or restrictions); (ii) if Stockholder acquires Beneficial Ownership of any additional outstanding shares of Company Common Stock during the Extension Period, to promptly (and, in any event, not later than two (2) Business Days after Stockholder acquires Beneficial Ownership of such additional outstanding shares of Company Common Stock) validly tender or cause to be validly tendered into the offer, pursuant to and in accordance with the terms of the offer, all of such additional shares of Company Common Stock (free and clear of any Liens or restrictions); and (iii) not to withdraw, and not to cause or permit to be withdrawn, any shares of Company Common Stock required to be tendered pursuant to clause (i) or (ii) from such offer unless and until (A) the offer expires without the purchaser having accepted for payment shares of Company Common Stock tendered in the offer or (B) termination of the Extension Period in accordance with Section 7.03 hereof. . (ii.) With respect to any meeting of holders of Company Common Stock called to consider such Superior Transaction, any definitive agreement relating to such Superior Transaction, or any proposal in furtherance of such Superior Transaction: (i) cause all shares of Company Common Stock Beneficially Owned by Stockholder held as of the record date for such meeting to be present and voted at such meeting, and (ii) with respect to each proposal to approve such Superior Transaction, any definitive agreement relating to such Superior Transaction, or any proposal in furtherance of such Superior Transaction, to cast votes with respect to, or to consent to, each such proposal in the same proportion (for, against, withheld and/or abstain) as the votes that are collectively cast by all of the Unaffiliated Holders. (iii.) Except as otherwise expressly required by the LLC Agreement, during the Extension Period, Stockholder will not vote any outstanding shares of Company Common Stock Beneficially Owned by Stockholder in favor of, or consent to, and will vote against and not consent to, the approval of any (i) Acquisition Proposal (other than the Superior Transaction), (ii) reorganization, recapitalization, dissolution, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company other than the Superior Transaction, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of any of the transactions contemplated by the Superior Transaction or (iv) other matter relating to, or in connection with, any of the foregoing matters. Stockholder shall ensure that, during the Extension Period, any other Person having voting power with respect to any outstanding shares of Company Common Stock Beneficially Owned by Stockholder will not vote any such shares in favor of or consent to, and will vote against, the approval of the matters described in clauses (i) through (iv) of the preceding sentence. (iv.) If requested by the party who is the purchaser in the Superior Transaction, Stockholder hereby agrees to grant a proxy, irrevocable during the Extension Period, appointing the purchaser in such Superior Transaction (for so long as such purchaser remains the purchaser in a Superior Transaction) as Stockholder’s attorney-in-fact and proxy, with full power of substitution, for and in Stockholder’s name, to vote, express consent or dissent, or otherwise to utilize such voting power (in each case of voting, expressing consents, dissenting or otherwise utilizing such voting power, in the manner contemplated by Section 3.01(ii.) and Section 3.01(iii.) above) as purchaser or its proxy or substitute shall, in their sole discretion, deem proper with respect to the outstanding shares of Company Common Stock Beneficially Owned by Stockholder. Any proxy granted by Stockholder shall not be exercised to vote, consent or act on any matter except as contemplated by Section 3.01(ii.) and Section 3.01(iii.) above. Any such proxy granted by Stockholder shall automatically be revoked immediately upon the end of the Extension Period, or if the purchaser no longer remains the purchaser in a Superior Transaction.