Common use of Permitted Change in Recommendation Clause in Contracts

Permitted Change in Recommendation. Notwithstanding anything in Section 5.02(e), prior to the time the Company Stockholder Approval is obtained, the Company Board may, so long as the Company and its Subsidiaries and Representatives have not breached this Section 5.02: (i) in response to an Intervening Event, if the Company Board has determined in good faith, after consultation with the Company’s outside legal counsel, that failure to do so would violate the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; and (ii) in response to a Superior Proposal, if the Company Board has determined in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that failure to do so would violate the directors’ fiduciary duties under applicable Law, (A) make an Adverse Recommendation Change or (B) cause the Company to terminate this Agreement pursuant to Section 7.01(d)(ii), pay the Company Termination Fee and enter into a Company Acquisition Agreement with respect to such Superior Proposal; provided, that the Company and the Company Board shall not take any such action unless the Company has given Parent at least four (4) business days’ (subject to clause (y) of this sentence) prior written notice (a “Company Notice”) of its intention to take any such action, which notice (A) in the case of an Intervening Event, specifies material changes, developments, effects, circumstances, states of facts or events comprising such Intervening Event and (B) in the case of a Superior Proposal, discloses (1) the material terms and conditions of such Superior Proposal and the identity of the Person or group of Persons making such Superior Proposal and its or their financing sources (if applicable), and (2) a copy of the most current version of the Company Acquisition Agreement (if any) with respect to such Superior Proposal and any agreement in the Company’s possession relating to the financing of such Superior Proposal; provided, further, that during such four (4) business day period (it being understood and agreed that (x) any change to the financial or other material terms and conditions of a Superior Proposal shall require an additional Company Notice to Parent of two (2) business days running from the date of such notice (provided, that in no event shall the giving of such additional Company Notice shorten the four (4) business day period under the initial Company Notice) and (y) with respect to any Person or group, the notice period for the first Company Notice given to Parent shall be four (4) business days and the notice period for any Company Notice given following the expiration of such four (4) business day period with respect to any Superior Proposal (or change thereto) made by such Person or group shall be two (2) business days), (I) the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such commercially reasonable adjustments to the terms and conditions of this Agreement as would enable the Company Board to no longer make an Adverse Recommendation Change or determination that an Acquisition Proposal constitutes a Superior Proposal and (II) the Company Board shall have determined following the end of such period, after considering the results of such negotiations and the revised proposals made by Parent, if any, after consultation with the Company’s financial advisors and outside legal counsel, (a) that the Superior Proposal giving rise to such Company Notice continues to be a Superior Proposal or (b) that failure to make an Adverse Recommendation Change in respect of the applicable Intervening Event would violate the directors’ fiduciary duties under applicable Law.

Permitted Change in Recommendation. Notwithstanding anything The Company Board shall not (x) withhold, withdraw, amend, change, qualify or modify in Section 5.02(ea manner adverse to the Buyer, or publicly propose to withhold, withdraw, amend, change, qualify or modify in a manner adverse to the Buyer (the “Company Board Recommendation”) or (y) approve, adopt or recommend to the stockholders of the Company any Acquisition Proposal, or publicly (or in a manner designed to become public) propose to approve, adopt or recommend to the stockholders of the Company any Acquisition Proposal, or (z) make any public statement (other than a “stop, look and listen” communication by the Company Board pursuant to Rule 14d9-f of the Exchange Act) in connection with a tender offer or exchange offer for shares of Company Common Stock, unless such statement includes a reaffirmation of the Company Board Recommendation (any such action within the scope of clauses (x), (y) and/or (z), a “Change in Recommendation”). Notwithstanding the foregoing or anything else to the contrary provided herein, at any time prior to the time receipt of the Company Stockholder Approval is obtainedApproval, the Company Board may, so long as the Company and its Subsidiaries and Representatives have not breached this Section 5.02: (i) may effect a Change in response to an Intervening Event, Recommendation if the Company Board has determined received an Acquisition Proposal that it determines in good faith, faith (after consultation with the Company’s outside legal counsel, that failure to do so would violate the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; and (ii) in response to a Superior Proposal, if the Company Board has determined in good faith, after consultation with the Company’s its financial advisors and outside legal counsel, that ) constitutes a Superior Proposal and the failure to do so take such action would violate the directors’ reasonably be expected to be a breach of its fiduciary duties under applicable Lawduties, provided that (and only if) (A) make an Adverse Recommendation Change the Company has not violated, in any material respect, any of the terms of Section 6.1(a), Section 6.1(b) or this Section 6.1(c) in connection with such Acquisition Proposal, (B) cause the Company to terminate this Agreement pursuant to Section 7.01(d)(ii), pay shall have given the Company Termination Fee and enter into a Company Acquisition Agreement with respect to such Superior Proposal; provided, that the Company and the Company Board shall not take any such action unless the Company has given Parent Buyer at least four three (43) business days’ (subject to clause (y) of this sentence) prior written notice (a “Company Notice”) of its intention to take any such action, action (which notice (A) in the case of an Intervening Event, specifies material changes, developments, effects, circumstances, states of facts or events comprising such Intervening Event and (B) in the case of a Superior Proposal, discloses (1) the material terms and conditions of such Superior Proposal and the identity of the Person or group of Persons making such Superior Proposal and its or their financing sources (if applicable), and (2) a copy of the most current version of the Company Acquisition Agreement (if any) with respect to such Superior Proposal and any agreement in the Company’s possession relating to the financing of such Superior Proposal; provided, further, that during such four (4) business day period (it being understood and agreed that (x) any change to the financial or other material terms and conditions of a Superior Proposal shall require an additional Company Notice to Parent of two (2) business days running from the date of such notice (provided, that in no event shall the giving of such additional Company Notice shorten the four (4) business day period under the initial Company Notice) and (y) with respect to any Person or group, the notice period for the first Company Notice given to Parent shall be four (4) business days and the notice period for any Company Notice given following the expiration of such four (4) business day period with respect to any Superior Proposal (or change thereto) made by such Person or group shall be two (2) business days), (I) the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such commercially reasonable adjustments to include the terms and conditions of this Agreement as would enable any such Superior Proposal) and, no later than the Company Board to no longer make an Adverse Recommendation Change or determination that an Acquisition Proposal constitutes a Superior Proposal and (II) the Company Board shall have determined following the end time of such periodnotice, after considering provided the results Buyer a copy of such negotiations the relevant proposed transaction agreement and the revised proposals made by Parent, if any, after consultation other material documents with the Company’s financial advisors and outside legal counsel, (a) that the party making such Superior Proposal giving rise to such Company Notice continues to be a Superior Proposal or (b) that failure to make an Adverse Recommendation Change in respect of the applicable Intervening Event would violate the directors’ fiduciary duties under applicable Law.Proposal,

Permitted Change in Recommendation. Notwithstanding anything to the contrary set forth in Section 5.02(e)this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, the Company Board may, so long as the Company and its Subsidiaries and Representatives have not breached this Section 5.02: (or applicable committee thereof) may (i) in response the absence of an Acquisition Proposal, make a Company Adverse Recommendation Change if a material event or change in circumstances has occurred with respect to an Intervening Eventthe Company after the date hereof and the Company Board determines in good faith (after consultation with its financial advisors and outside counsel) that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, or (ii) if the Company Board has determined received an Acquisition Proposal (that has not been withdrawn), effect a Company Adverse Recommendation Change or approve or recommend any Acquisition Proposal if the Company Board determines in good faith, after consultation with the Company’s its financial advisors and outside legal counsel, that such Acquisition Proposal was an unsolicited bona fide written Acquisition Proposal received by the Company in compliance with Section 6.1(a) and constitutes a Superior Proposal and that the failure to do so would violate the directors’ be inconsistent with its fiduciary duties obligations under applicable Law; provided, make an that prior to the Company Board taking any action contemplated by clause (i) or (ii): (A) the Company and its Subsidiaries shall have complied in all material respects with this Section 6.1 and the Company shall have provided to the Parent prior written notice, at least four (4) Business Days in advance of taking such action, advising the Parent of the decision of the Company Board to propose to take such action and the reasons therefor (which notice shall not, in and of itself, constitute a Company Adverse Recommendation Change), including, in the case of an Acquisition Proposal, the identity of the party making such Acquisition Proposal, an unredacted copy of the Acquisition Proposal, the relevant proposed transaction agreements and a copy of any financing commitments (including redacted fee letters) relating thereto; (B) the Company shall have given the Parent four (4) Business Days after delivery of such notice to propose revisions to the terms of this Agreement (or make another proposal) and if the Parent proposes to revise the terms of this Agreement or make another proposal, the Company shall discuss (and shall have caused its Representatives to discuss), during such period, in good faith with the Parent such proposed revisions or other proposal (it being agreed that, in the case of an Acquisition Proposal, any material changes or modifications to an Acquisition Proposal shall require a new notice except the notice and discussion period shall be a two (2) Business Day period); and (iiC) in response to a Superior Proposal, if the Company Board has shall have determined in good faith, after consultation with considering the Company’s financial advisors results of such discussions and outside legal counselgiving effect to the proposed revisions made in writing by the Parent, if any, that failure to do so would violate the directors’ fiduciary duties under applicable Law, (A) make an Adverse Recommendation Change or (B) cause the Company to terminate this Agreement pursuant to Section 7.01(d)(ii), pay the Company Termination Fee and enter into a Company Acquisition Agreement with respect to such Superior Proposal; provided, that the Company and the Company Board shall not take any such action unless the Company has given Parent at least four (4) business days’ (subject to clause (y) of this sentence) prior written notice (a “Company Notice”) of its intention to take any such action, which notice (A1) in the case of an Intervening Event, specifies material changes, developments, effects, circumstances, states of facts or events comprising such Intervening Event and (B) in the case of a Superior Acquisition Proposal, discloses (1) the material terms and conditions of such Superior Proposal and the identity of the Person or group of Persons making such Superior Proposal and its or their financing sources (if applicable), and (2) a copy of the most current version of the Company Acquisition Agreement (if any) with respect to such Superior Proposal and any agreement in the Company’s possession relating to the financing of such Superior Proposal; provided, further, that during such four (4) business day period (it being understood and agreed that (x) any change to the financial or other material terms and conditions of a Superior Proposal shall require an additional Company Notice to Parent of two (2) business days running from the date of such notice (provided, that in no event shall the giving of such additional Company Notice shorten the four (4) business day period under the initial Company Notice) and (y) with respect to any Person or group, the notice period for the first Company Notice given to Parent shall be four (4) business days and the notice period for any Company Notice given following the expiration of such four (4) business day period with respect to any Superior Proposal (or change thereto) made by such Person or group shall be two (2) business days), (I) the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such commercially reasonable adjustments to the terms and conditions of this Agreement as would enable the Company Board to no longer make an Adverse Recommendation Change or determination that an Acquisition Proposal constitutes a Superior Proposal and (II) that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board shall have determined following under applicable Law and (2) in the end absence of an Acquisition Proposal, failure to take such period, after considering the results of such negotiations and the revised proposals made by Parent, if any, after consultation action would be inconsistent with the Company’s financial advisors and outside legal counsel, (a) that the Superior Proposal giving rise to such Company Notice continues to be a Superior Proposal or (b) that failure to make an Adverse Recommendation Change in respect fiduciary duties of the applicable Intervening Event would violate the directors’ fiduciary duties Company Board under applicable Law.

Permitted Change in Recommendation. Notwithstanding anything The Company Board shall not (x) withhold, withdraw, amend, change, qualify or modify in Section 5.02(ea manner adverse to the Buyer, or publicly propose to withhold, withdraw, amend, change, qualify or modify in a manner adverse to the Buyer (the “Company Board Recommendation”) or (y) approve, adopt or recommend to the stockholders of the Company any Acquisition Proposal, or publicly (or in a manner designed to become public) propose to approve, adopt or recommend to the stockholders of the Company any Acquisition Proposal, or (z) make any public statement (other than a “stop, look and listen” communication by the Company Board pursuant to Rule 14d9-f of the Exchange Act) in connection with a tender offer or exchange offer for shares of Company Common Stock, unless such statement includes a reaffirmation of the Company Board Recommendation (any such action within the scope of clauses (x), (y) and/or (z), a “Change in Recommendation”). Notwithstanding the foregoing or anything else to the contrary provided herein, at any time prior to the time receipt of the Company Stockholder Approval is obtainedApproval, the Company Board may, so long as the Company and its Subsidiaries and Representatives have not breached this Section 5.02: (i) may effect a Change in response to an Intervening Event, Recommendation if the Company Board has determined received an Acquisition Proposal that it determines in good faith, faith (after consultation with the Company’s outside legal counsel, that failure to do so would violate the directors’ fiduciary duties under applicable Law, make an Adverse Recommendation Change; and (ii) in response to a Superior Proposal, if the Company Board has determined in good faith, after consultation with the Company’s its financial advisors and outside legal counsel, that ) constitutes a Superior Proposal and the failure to do so take such action would violate the directors’ reasonably be expected to be a breach of its fiduciary duties under applicable Lawduties, provided that (and only if) (A) make an Adverse Recommendation Change the Company has not violated, in any material respect, any of the terms of Section 6.1(a), Section 6.1(b) or this Section 6.1(c) in connection with such Acquisition Proposal, (B) cause the Company to terminate this Agreement pursuant to Section 7.01(d)(ii), pay shall have given the Company Termination Fee and enter into a Company Acquisition Agreement with respect to such Superior Proposal; provided, that the Company and the Company Board shall not take any such action unless the Company has given Parent Buyer at least four three (43) business days’ (subject to clause (y) of this sentence) prior written notice (a “Company Notice”) of its intention to take such action (which notice shall include the terms and conditions of any such actionSuperior Proposal) and, which no later than the time of such notice, provided the Buyer a copy of the relevant proposed transaction agreement and other material documents with the party making such Superior Proposal, (C) if requested by the Buyer, the Company shall have negotiated in good faith with Parent during such three (3) business day notice (A) in period to enable the case Buyer to propose changes to the terms of an Intervening Event, specifies material changes, developments, effects, circumstances, states of facts or events comprising this Agreement that would cause such Intervening Event and (B) in the case of Superior Proposal to no longer constitute a Superior Proposal, discloses (1D) the material terms Company Board shall have considered in good faith (after consultation with its financial advisors and conditions outside legal counsel) any changes to this Agreement proposed by the Buyer in a written offer capable of such acceptance and determined that the Superior Proposal and the identity of the Person or group of Persons making such would continue to constitute a Superior Proposal and its or their financing sources (if applicable)such changes were to be given effect, and (2E) a copy of the most current version of the Company Acquisition Agreement (if any) with respect to such Superior Proposal and any agreement in the Company’s possession relating to the financing event of such Superior Proposal; provided, further, that during such four (4) business day period (it being understood and agreed that (x) any material change to the financial or other material terms and conditions of a such Superior Proposal shall require Proposal, the Company shall, in each case, have delivered to Parent an additional Company Notice to Parent notice and copies of two the relevant proposed transaction agreement and other material documents and the three (2) business days running from the date of such notice (provided, that in no event shall the giving of such additional Company Notice shorten the four (43) business day period under the initial Company Notice) and (y) with respect to any Person or group, the notice period for shall have recommenced. Subject to the provisions of Section 8.1(h), nothing in this Section 6.1 shall be deemed to (A) permit the Company to take any action described in clauses (ii) or (iii) of the first Company Notice given to Parent shall be four (4) business days and the notice period for any Company Notice given following the expiration sentence of such four (4) business day period with respect to any Superior Proposal (or change thereto) made by such Person or group shall be two (2) business daysSection 6.1(b), or (IB) affect any obligation of the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such commercially reasonable adjustments to the terms and conditions of under this Agreement as would enable or (C) limit the Company’s obligation to call, give notice of, convene and hold the Company Meeting, regardless of whether the Company Board to no longer make an Adverse Recommendation Change or determination that an Acquisition Proposal constitutes has made a Superior Proposal and (II) the Company Board shall have determined following the end of such period, after considering the results of such negotiations and the revised proposals made by Parent, if any, after consultation with the Company’s financial advisors and outside legal counsel, (a) that the Superior Proposal giving rise to such Company Notice continues to be a Superior Proposal or (b) that failure to make an Adverse Recommendation Change in respect of the applicable Intervening Event would violate the directors’ fiduciary duties under applicable LawRecommendation.