Common use of Adverse Recommendation Change Clause in Contracts

Adverse Recommendation Change. (a) Except as permitted by this Section 5.03, the Partnership Board (acting on the recommendation of the Conflicts Committee) shall not (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the Partnership Board Recommendation or (ii) fail to include the Partnership Board Recommendation in the Proxy Statement (the taking of any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by the Partnership’s or the General Partner’s Subsidiaries, or the Partnership’s or the General Partner’s Representatives, other than any violation caused by or at the direction of Parent, shall be deemed to be a breach of this Section 5.03 by the Partnership and the General Partner. (b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Partnership Unitholder Approval, and subject to compliance in all material respects with this Section 5.03(b), the Partnership Board (acting on the recommendation of the Conflicts Committee) may make an Adverse Recommendation Change if, and only if, (A) a Partnership Intervening Event has occurred and the Partnership Board (acting on the recommendation of the Conflicts Committee after consulting with its financial advisor and outside legal counsel) has determined in good faith, after consulting with its outside legal counsel, that the failure to take such action would reasonably be expected to constitute a breach of its duties under the Partnership Agreement or applicable Law, or (B) the Partnership receives a Takeover Proposal and the Partnership Board (acting on the recommendation of the Conflicts Committee after consulting with its financial advisor and outside legal counsel) has determined in good faith, after consulting with its outside legal counsel) that such Takeover Proposal constitutes a Superior Proposal and that the failure to take such action would reasonably be expected to constitute a breach of its duties under the Partnership Agreement or applicable Law; provided, however, that the Partnership Board (acting on the recommendation of the Conflicts Committee) may not effect an Adverse Recommendation Change pursuant to the foregoing clause (A) or (B) unless: (i) the Conflicts Committee or Partnership Board has provided prior written notice to Parent specifying in reasonable detail the reasons for such action at least 5 Business Days in advance of the Partnership Board’s intention to take such action with respect to an Adverse Recommendation Change (the period inclusive of all such days, the “Partnership Notice Period”); and (ii) during the Partnership Notice Period, the Conflicts Committee has negotiated, and has used its reasonable best efforts to cause its financial advisor and outside legal counsel to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that the failure of the Partnership Board (acting on the recommendation of the Conflicts Committee) to effect such Adverse Recommendation Change would not be inconsistent with its duties under the Partnership Agreement or applicable Law; provided, however, that the Conflicts Committee shall take into account all changes to the terms of this Agreement proposed by Parent in determining whether to recommend an Adverse Recommendation Change to the Partnership Board.

Adverse Recommendation Change. (a) Except as permitted by this Section 5.035.3, MLP and the Partnership Board (acting on General Partner shall not, and shall cause their respective Subsidiaries and the recommendation of the Conflicts Committee) foregoing shall use their commercially reasonable efforts to cause their respective Representatives not to, directly or indirectly (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the Partnership MLP Board Recommendation or (ii) fail to include the Partnership MLP Board Recommendation in the Proxy Statement (the taking of any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions by the PartnershipMLP’s or the General Partner’s Subsidiaries, or the PartnershipMLP’s or the General Partner’s Representatives, other than any violation caused by or at the direction of Parent, shall be deemed to be a breach of this Section 5.03 5.3 by the Partnership MLP and the General Partner. (b) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Partnership Unitholder Approval, and subject to compliance in all material respects with this Section 5.03(b5.3(b), the Partnership Board (acting on the recommendation of the Conflicts Committee) Committee may make an Adverse Recommendation Change if, and only if, (A) a Partnership Intervening Event has occurred and the Partnership Board (acting on the recommendation of if the Conflicts Committee determines in good faith (after consulting consultation with its financial advisor advisors and outside legal counsel) has determined in good faith, after consulting with its outside legal counsel, that the failure to take such action would reasonably be expected adverse to constitute the interests of the Unaffiliated Unitholders or would otherwise be a breach of its duties under the Partnership Agreement or and applicable Law, or (B) the Partnership receives a Takeover Proposal and the Partnership Board (acting on the recommendation of the Conflicts Committee after consulting with its financial advisor and outside legal counsel) has determined in good faith, after consulting with its outside legal counsel) that such Takeover Proposal constitutes a Superior Proposal and that the failure to take such action would reasonably be expected to constitute a breach of its duties under the Partnership Agreement or applicable Law; provided, however, that the Partnership Board (acting on the recommendation of the Conflicts Committee) Committee may not effect an Adverse Recommendation Change pursuant to the foregoing clause (A) or (B) unless: (i) the Conflicts Committee or Partnership Board has provided prior written notice to Parent specifying in reasonable detail the reasons for such action at least 5 Business Days five days in advance of the Partnership Board’s its intention to take such action with respect to an Adverse Recommendation Change Change, unless at the time such notice is otherwise required to be given there are less than five days prior to the Partnership Unitholder Meeting, in which case the Conflicts Committee shall provide as much notice as is practicable (the period inclusive of all such days, the “Partnership MLP Notice Period”); and (ii) during the Partnership MLP Notice Period, the Conflicts Committee has negotiated, and has used its commercially reasonable best efforts to cause its financial advisor advisors and outside legal counsel to negotiate, with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that the failure of the Partnership Board (acting on the recommendation of the Conflicts Committee) to effect such Adverse Recommendation Change would not be inconsistent with adverse to the interests of the Unaffiliated Unitholders or would not otherwise be a breach of its duties under the Partnership Agreement or and applicable Law; , provided, however, that the Conflicts Committee shall take into account all changes to the terms of this Agreement proposed by Parent in determining whether to recommend make an Adverse Recommendation Change to the Partnership BoardChange.

Adverse Recommendation Change. (a) Except as permitted by set forth in this Section 5.035.02(d), neither the Company, the Partnership Company Board (acting on the recommendation nor any committee of the Conflicts Committee) Company Board shall not (i) withdraw(A) change, modify withhold, withdraw or qualify, or propose publicly to withdraw, modify or qualify, qualify in a any manner adverse to ParentParent (or publicly propose to change, withhold, withdraw or qualify), the Partnership Board Recommendation or Company Recommendation, (iiB) fail to include the Partnership Board Company Recommendation in the Proxy Statement Statement, (C) approve, declare advisable or recommend, or publicly propose to approve, declare advisable or recommend, to the taking shareholders of the Company, an Acquisition Proposal, (D) with respect to the public announcement of any Acquisition Proposal, fail to confirm publicly through a press release or similar means the Company Recommendation within five (5) Business Days after the date when requested to do so in writing by Parent, (E) if a tender offer or exchange offer for shares of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the shareholders of the Company on the earlier of (1) the tenth (10th) Business Day after the commencement of such tender or exchange offer and (2) the second (2nd) Business Day prior to the Company Shareholders Meeting or (F) resolve to take any action described in clauses above (i) or (ii) being referred to as any of the foregoing, an “Adverse Recommendation Change”). Without limiting the foregoing) or (ii) authorize, it is understood that any violation of the foregoing restrictions by the Partnership’s adopt or the General Partner’s Subsidiariesapprove, or publicly propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the Partnership’s Company or the General Partner’s Representatives, other than any violation caused by or at the direction of Parent, shall be deemed its Subsidiaries to be a breach of this Section 5.03 by the Partnership and the General Partner. (b) enter into any Alternative Acquisition Agreement. Notwithstanding anything herein to the contrary in this Agreementcontrary, at any time prior to obtaining the Partnership Unitholder Approval, and subject to compliance in all material respects with this Section 5.03(b)Company Shareholders Meeting, the Partnership Company Board may (acting on the recommendation of the Conflicts CommitteeI) may make in response to an Intervening Event, effect an Adverse Recommendation Change if, and only if, (A) a Partnership Intervening Event has occurred and if the Partnership Company Board (acting on the recommendation of the Conflicts Committee after consulting with its financial advisor and outside legal counsel) has determined in good faith, after consulting consultation with its outside legal counsel, that the failure to take such action would reasonably be expected inconsistent with the directors’ fiduciary duties under Applicable Law and (II) with respect to constitute a an Acquisition Proposal that did not result, in the case of the Company or any of its Subsidiaries, from any breach of its duties under Section 5.02(a), or, in the Partnership Agreement or applicable Law, or (B) the Partnership receives a Takeover Proposal and the Partnership Board (acting on the recommendation case of the Conflicts Committee after consulting with Company or its financial advisor and outside legal counselSubsidiaries’ respective Representatives, result from any material breach of Section 5.02(a) has determined that the Company Board determines in good faith, after consulting consultation with its a financial advisor of recognized international reputation and outside legal counsel) that such Takeover Proposal , constitutes a Superior Proposal, (1) effect an Adverse Recommendation Change and/or (2) authorize, adopt and approve such Superior Proposal and that cause or permit the failure to take such action would reasonably be expected to constitute a breach Company and/or one of its duties under the Partnership Subsidiaries to enter into an Alternative Acquisition Agreement or applicable Lawwith respect to such Superior Proposal; provided, however, that the Partnership Company Board may only take the actions described in clause (acting on II)(2) if the recommendation of the Conflicts Committee) may not effect an Adverse Recommendation Change Company terminates this Agreement pursuant to Section 8.01(d) concurrently with entering into such Alternative Acquisition Agreement and pays the foregoing Termination Fee in compliance with Section 8.03(b), and may only take the actions described in clause (AI) or (BII) unlessif: (i) the Conflicts Committee or Partnership Board Company has provided prior written notice to Parent specifying in reasonable detail of its or the reasons for such action at least 5 Business Days in advance of the Partnership Company Board’s intention to take such action with respect to actions at least five (5) Business Days in advance of taking such action, which notice shall specify (A) in the case of an Adverse Recommendation Change (the period inclusive of all such daysIntervening Event, the “Partnership Notice Period”material circumstances giving rise thereto and (B) in the case of a Superior Proposal, the material terms of the Superior Proposal, including the identity of the Person making the Acquisition Proposal and, if the Company intends to take the actions described in clause (II)(2); and, shall include a copy of the proposed Alternative Acquisition Agreement; (ii) during the Partnership Notice Periodafter providing such notice and prior to taking such actions, the Conflicts Committee has negotiatedCompany shall have, and has used shall have caused its reasonable best efforts to cause its financial advisor and outside legal counsel to negotiateRepresentatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such five (5) Business Day period to make such commercially reasonable adjustments in the terms and conditions of this Agreement so that as would permit the failure of Company or the Partnership Company Board (acting on the recommendation of the Conflicts Committee) not to effect such Adverse Recommendation Change would not be inconsistent with its duties under the Partnership Agreement or applicable Law; provided, however, that the Conflicts Committee shall take into account all changes to the terms of this Agreement proposed by Parent in determining whether to recommend make an Adverse Recommendation Change or determine that a proposal constitutes a Superior Proposal; and (iii) the Company Board shall have considered in good faith any changes to this Agreement that may be offered in writing by Parent by 5:00 PM Eastern Time on the fifth (5th) Business Day of such five (5) Business Day period and shall have determined in good faith (A) with respect to the Partnership Boardactions described in Section 5.02(d)(ii)(I), after consultation with outside legal counsel, that it would continue to be inconsistent with the directors’ fiduciary duties under Applicable Law not to effect an Adverse Recommendation Change in response to such Intervening Event and (B) with respect to the actions described in Section 5.02(d)(ii)(II), after consultation with a financial advisor of recognized international reputation and outside legal counsel, that the Acquisition Proposal received by the Company would continue to constitute a Superior Proposal, in each case, if such changes offered in writing by Parent were given effect (it being understood and agreed that any amendment to any material term of a Superior Proposal shall require a new notice in accordance with Section 5.02(d)(i) (except that references to five (5) Business Days shall be replaced with three (3) Business Days) prior to the Company taking any such action).