Common use of Certain Actions Prior to Termination Clause in Contracts

Certain Actions Prior to Termination. (a) USOL shall provide to FLCI written notice of its intention to terminate this Agreement pursuant to Section 8.1(a)(viii) advising FLCI (i) that the Board of Directors of USOL has determined, by action of a majority of the members of the Board of Directors of USOL who are not affiliated with either FLCI or the Person making such Acquisition Proposal or their respective affiliates, that such Acquisition Proposal is a Superior Offer and that, in the exercise of its good faith judgment as to fiduciary duties to stockholders under applicable law, after consultation with USOL's outside legal counsel, failure by the Board of Directors to terminate this Agreement could reasonably be expected to result in a breach of such duties and (ii) as to the material terms of any such Acquisition Proposal. At any time after the fifth business day following receipt of such notice by FLCI, USOL may terminate this Agreement as provided in Section 8.1(a)(viii) only if the Board of Directors of USOL who are not affiliated with either FLCI or the Person making such Acquisition Proposal or their respective affiliates, determines that failure by the Board of Directors to terminate this Agreement continues to be reasonably expected to result in a breach of its fiduciary duties to stockholders under applicable law (which determination shall be made in light of any revised proposal made by FLCI prior to the expiration of such five business day period) and concurrently enters into a definitive agreement providing for the implementation of such Acquisition Proposal. (b) FLCI shall provide to USOL written notice of its intention to terminate this Agreement pursuant to Section 8.1(b) advising USOL (i) that the Board of Directors of FLCI has determined, by action of a majority of the members of the Board of Directors of FLCI who are not affiliated with either USOL or the Person making such Acquisition Proposal or their respective affiliates, that such Acquisition Proposal is a Superior Offer and that, in the exercise of its good faith judgment as to fiduciary duties to stockholders under applicable law, after consultation with FLCI's outside legal counsel, failure by the Board of Directors to terminate this Agreement could reasonably be expected to result in a breach of such duties and (ii) as to the material terms of any such Acquisition Proposal. At any time after the fifth business day following receipt of such notice by USOL, FLCI may terminate this Agreement as provided in Section 8.1(b) only if the Board of Directors of FLCI who are not affiliated with either USOL or the Person making such Acquisition Proposal or their respective affiliates, determines that failure by the Board of Directors to terminate this Agreement continues to be reasonably expected to result in a breach of its fiduciary duties to stockholders under applicable law (which determination shall be made in light of any revised proposal made by USOL prior to the expiration of such five business day period) and concurrently enters into a definitive agreement providing for the implementation of such Acquisition Proposal. (c) For purposes of this Agreement, "SUPERIOR OFFER" means an Acquisition Proposal which is superior from a financial point of view to (i) FLCI's stockholders (other than any stockholders affiliated with USOL) or (ii) USOL's stockholders (other than any stockholders affiliated with FLCI), as applicable, to the Merger and for which financing, to the extent required, is then committed or which, in the good faith judgment of FCLI's or USOL's board of directors, as applicable, after consultation with FLCI's or USOL's financial advisors is reasonably capable of being obtained.

Certain Actions Prior to Termination. (a) USOL shall provide to FLCI written notice of its intention to terminate this Agreement pursuant to Section 8.1(a)(viii) advising FLCI (i) that the Board of Directors of USOL has determined, by action of a majority of the members of the Board of Directors of USOL who are not affiliated with either FLCI or the Person making such Acquisition Proposal or their respective affiliates, that such Acquisition Proposal is a Superior Offer and that, in the exercise of its good faith judgment as to fiduciary duties to stockholders under applicable law, after consultation with USOL's outside legal counsel, failure by the Board of Directors to terminate this Agreement could reasonably be expected to result in a breach of such duties and (ii) as to the material terms of any such Acquisition Proposal. At any time after the fifth business day following receipt of such notice by FLCI, USOL may terminate this Agreement as provided in Section 8.1(a)(viii) only if the Board of Directors of USOL who are not affiliated with either FLCI or the Person making such Acquisition Proposal or their respective affiliates, determines that failure by the Board of Directors to terminate this Agreement continues to be reasonably expected to result in a breach of its fiduciary duties to stockholders under applicable law (which determination shall be made in light of any revised proposal made by FLCI prior to the expiration of such five business day period) and concurrently enters into a definitive agreement providing for the implementation of such Acquisition Proposal. (b) FLCI shall provide to USOL written notice of its intention to terminate this Agreement pursuant to Section 8.1(b) advising USOL (i) that the Board of Directors of FLCI has determined, by action of a majority of the members of the Board of Directors of FLCI who are not affiliated with either USOL or the Person making such Acquisition Proposal or their respective affiliates, that such Acquisition Proposal is a Superior Offer and that, in the exercise of its good faith judgment as to fiduciary duties to stockholders under applicable law, after consultation with FLCI's outside legal counsel, failure by the Board of Directors to terminate this Agreement could reasonably be expected to result in a breach of such duties and (ii) as to the material terms of any such Acquisition Proposal. At any time after the fifth business day following receipt of such notice by USOL, FLCI may terminate this Agreement as provided in Section 8.1(b) only if the Board of Directors of FLCI who are not affiliated with either USOL or the Person making such Acquisition Proposal or their respective affiliates, determines that failure by the Board of Directors to terminate this Agreement continues to be reasonably expected to result in a breach of its fiduciary duties to stockholders under applicable law (which determination shall be made in light of any revised proposal made by USOL prior to the expiration of such five business day period) and concurrently enters into a definitive agreement providing for the implementation of such Acquisition Proposal. (c) For purposes of this Agreement, "SUPERIOR OFFERSuperior Offer" means an Acquisition Proposal which is superior from a financial point of view to (i) FLCI's stockholders (other than any stockholders affiliated with USOL) or (ii) USOL's stockholders (other than any stockholders affiliated with FLCI), as applicable, to the Merger and for which financing, to the extent required, is then committed or which, in the good faith judgment of FCLI's or USOL's board of directors, as applicable, after consultation with FLCI's or USOL's financial advisors is reasonably capable of being obtained.