Common use of Fiduciary exception Clause in Contracts

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, (i) contact the Person or group of Persons making such Acquisition Proposal solely to inform such Person or group of Persons of the terms of this Section 6.6, (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 less favorable in any material respect to Seller than those contained in the Confidentiality Agreement and does not prohibit Seller from providing any information to Purchaser in accordance with, and otherwise complying with, this Agreement (such confidentiality agreement, an “Acceptable Confidentiality Agreement”) and (iii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only if, prior to taking any action described in clauses (i), (ii) or (iii) above, Seller has provided prior written notice to Purchaser and 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 either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (B) Seller’s outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board to Seller’s stockholders under applicable Law. Seller shall provide Purchaser with an accurate and complete copy of any Acceptable Confidentiality Agreement entered into as contemplated by this Section 6.6 promptly (and in any event within 12 hours) of the execution hereof.

Fiduciary exception. (A) Notwithstanding anything to the contrary in provisions of Section 6.6.17.11(c)(i), prior to the timeCentury shall not be prohibited from furnishing information to, but not afteror entering into discussions or negotiations with, the Stockholder Approval is obtained, Seller may, in response to any Person that makes an unsolicited bona fide, 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, (i) contact the Person or group of Persons making such Acquisition Proposal solely to inform such Person or group of Persons of the terms of this Section 6.6, (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 less favorable in any material respect to Seller than those contained in the Confidentiality Agreement and does not prohibit Seller from providing any information to Purchaser in accordance with, and otherwise complying with, this Agreement (such confidentiality agreement, an “Acceptable Confidentiality Agreement”) and (iii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only ifto the extent that, (1) such action is taken prior to taking any action described in clauses the issuance of the Confirmation Order, (i2) 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, (ii3) or such Acquisition Proposal is an all-cash offer, with all third-party financing (iiiif any) abovebeing 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, Seller has provided prior written notice to Purchaser 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 (Ain customary form and subject to customary conditions) Seller’s of an independent, nationally recognized financial advisor and outside legal counsel that based on the information then availableadvisor, that such the Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to 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 and (BProposal”). Prior to taking any action pursuant to this Section 7.11(c)(ii) Seller’s outside legal counselwith respect to an Acquisition Proposal, Century shall provide prior written notice to the Buyer to the effect that the failure it is proposing to take such action would reasonably be expected and provide the additional information required by Section 7.11(c)(ii)(B) (to be inconsistent with the fiduciary duties 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 Board to Seller’s stockholders under applicable Law. Seller Person making it) as promptly as practicable (but in no case later than 24 hours) after its receipt thereof, and shall provide Purchaser the Buyer with an accurate and complete a copy of any Acceptable Confidentiality Agreement entered 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 as 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 6.6 promptly (and 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 any event within 12 hours) accordance with the applicable provisions of the execution hereofthis Agreement.

Fiduciary exception. Notwithstanding anything to the contrary set forth in this Section 6.6.16.1, at any time prior to the time, but not afterAcceptance Time, the Stockholder Approval is obtained, Seller may, 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 unsolicited bona fide, written Acquisition Qualifying 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, (i) contact the Person or group of Persons making such Acquisition Proposal solely to inform such Person or group of Persons of the terms of this Section 6.6, (ii) provide access to non-public information regarding Seller to the Person who made such no other Acquisition Proposal; provided that such information has previously been made available to Purchaser or is provided to Purchaser substantially concurrently with ) if (A) 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 less favorable in any material respect to Seller than those contained in the Confidentiality Agreement and does not prohibit Seller from providing any information to Purchaser in accordance with, and otherwise complying with, this Agreement (such confidentiality agreement, an “Acceptable Confidentiality Agreement”) and (iii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only if, prior to taking any action described in clauses (i), (ii) or (iii) above, Seller has provided prior written notice to Purchaser and the Company Board determines shall have determined in good faith (after consultation with outside counsel and its financial advisor) that (Ax) Seller’s financial advisor and outside legal counsel that based on the information then available, that such Acquisition Qualifying Proposal either constitutes a Superior Proposal or would reasonably be expected to result in constitute a Superior Proposal and (y) the failure to effect a Company Board Recommendation Change would be inconsistent with its fiduciary obligations under applicable law; (B) Sellerthe Company has notified the Parent in writing that it intends to effect a Company Board Recommendation Change (a “Determination Notice”), which Determination Notice shall (w) describe in reasonable detail the reasons for such Company Board Recommendation Change, (x) provide the material terms and conditions of such Qualifying Proposal (including the consideration offered therein and the identity of the Person or group making such Qualifying Proposal), (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, and (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 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 legal counsel and financial advisor) available for discussions and negotiations with the Parent’s Representatives regarding any proposed modifications to the terms and conditions of this Agreement during the four (4)-Business Day period following delivery by the Company to the 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 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 provided to Parent a Determination Notice describing in reasonable detail the reasons for such Company Board Recommendation Change; (C) if requested by the Parent, the Company shall have made its Representatives, including its senior management, outside counsel and financial advisor) available for discussions and negotiations with the Parent’s Representatives regarding any proposed modifications to the terms and conditions of this Agreement during the four (4) -Business Day period following delivery by the Company to the Parent of such Determination Notice; and (D) 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 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 the failure to take such action effect a Company Board Recommendation Change would reasonably be expected to still be inconsistent with the its fiduciary duties of the Board to Seller’s stockholders obligations under applicable Law. Seller shall provide Purchaser with an accurate and complete copy of any Acceptable Confidentiality Agreement entered into as contemplated by this Section 6.6 promptly (and in any event within 12 hours) of the execution hereoflaw.

Fiduciary exception. (a) Notwithstanding anything to the contrary in Section 6.6.15.6, prior to the time, but not after, the Stockholder Approval is obtained, Seller may, in response to an unsolicited bona fideunsolicited, 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 Execution Date) which did not result from a material breach of this Section 6.65.6, (i) contact the Person or group of Persons making such Acquisition Proposal solely to clarify the terms and conditions thereof and inform such Person or group of Persons of the terms of this Section 6.65.6, (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 less favorable at least as restrictive in any all material respect to Seller than those contained in respects on such Person as the Confidentiality Agreement and does Agreement’s terms are on Purchaser (it being understood that such confidentiality agreement need not prohibit Seller from providing any information to Purchaser in accordance with, and otherwise complying with, this Agreement (such confidentiality agreement, the making or amending of an “Acceptable Confidentiality Agreement”Acquisition Proposal) and (iii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only if, prior to taking any action described in clauses (i), clause (ii) or (iii) above, Seller has provided prior written notice to Purchaser and the Board determines in good faith after consultation with (A) Seller’s financial advisor and outside legal counsel that (A) based on the information then available, available that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (B) Seller’s outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law. (b) Notwithstanding anything to the contrary set forth in Section 5.6.3, following receipt of an unsolicited, written 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, definitive form of Alternative Acquisition Agreement, and the Board determining in good faith, after consultation with outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, the Board may, at any time prior to the time the Stockholder Approval is obtained, make a Change in Recommendation with respect to such Superior Proposal, if all of the following conditions are met: (i) Seller shall 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, which shall state expressly (1) that it has received a written Acquisition Proposal that constitutes a Superior Proposal, (2) the material terms and conditions of the Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal), and (3) that, subject to 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, (x) engaged in good faith negotiations with Purchaser (to the extent Purchaser wishes to engage) during such 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 take into account any changes to the 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 Change in Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law. (c) Furthermore, upon the occurrence of any Intervening Event; provided, that such Intervening Event occurs prior to 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 action would be a breach of the fiduciary duties of the Board to Seller’s stockholders under applicable Delaware Law. ; (ii) Seller shall provide have (A) provided to Purchaser five (5) Business Days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Intervening Event and the rationale for the Change in Recommendation, and (2) state expressly that, subject to 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 an accurate ▇▇▇▇▇▇▇▇▇ (to the extent Purchaser wishes to engage) during such five (5) Business Day period to consider adjustments to the terms and complete copy conditions of any Acceptable Confidentiality this Agreement entered into as contemplated which may be proposed in writing by this Section 6.6 promptly (and Purchaser in any event within 12 hours) such a manner that the failure of the execution hereofBoard to make a Change in Recommendation in response to the Intervening Event in accordance with clause (iii) below would no longer be reasonably expected to be a breach of the 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 such Intervening Event and taking into account any revised terms proposed in writing by ▇▇▇▇▇▇▇▇▇, the failure to make a Change in Recommendation, would be breach the directors’ fiduciary duties under Delaware Law.