Common use of Change in Recommendation Clause in Contracts

Change in Recommendation. Except as set forth in this Section 6.05(c), the Company Board and the Independent Committee shall not (i) withdraw, or modify or change in a manner adverse to Parent and Merger Co, the approval or recommendation of this Agreement or the Merger by the Company Board (or any committee thereof); (ii) approve, adopt or recommend any Acquisition Proposal; or (iii) approve or recommend, or allow the Company or any Subsidiary to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to, or that is reasonably expected to result in, any Acquisition Proposal (other than a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, (x) in response to the receipt of an unsolicited Acquisition Proposal, if the Company Board (or any committee thereof) (A) determines in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such action, and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent to make such an offer, and (3), in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties under applicable law, then the Company Board may withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders of the Company or does not believe that the Merger and the Agreement are in the best interests of the stockholders of the Company shall be deemed for all purposes of this Agreement to be a Change in Board Recommendation.

Change in Recommendation. Except as set forth Notwithstanding anything in Section 4.4 and this Section 6.05(c4.6 to the contrary, at any time prior to the receipt of the Member Approval (and in no event after the receipt of the Member Approval), the Company Board and the Independent Committee shall not may (i) withdraweffect a Change in Recommendation and, or modify or change in a manner adverse subject to Parent compliance with this Section 4.6(c) and Merger CoSection 7.1(h), the approval or recommendation of terminate this Agreement or the Merger by the Company Board (or any committee thereofin accordance with Section 7.1(h); (ii) approve, adopt or recommend any Acquisition Proposal; or (iii) approve or recommend, or allow the Company or any Subsidiary to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to, or that is reasonably expected to result in, any Acquisition Proposal (other than a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, (x) in response to the following receipt of an unsolicited Acquisition Proposal, if bona fide written proposal for an Alternative Transaction after the date of this Agreement which the Company Board (or any committee thereof) (A) determines in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible advisors and outside legal counsel is a Superior Proposal and Proposal, or (Bii) determines effect a Change in good faith (after consultation with its outside legal counsel) that it is required Recommendation in response to do so in order to comply with its fiduciary duties to the stockholders of the a Company under applicable law, then the Company Board may approve and recommend such Superior Proposal andIntervening Event, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent each case if and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such action, and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent to make such an offer, and (3), in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, only if the Company Board determines in good faith (by resolution duly adopted after first providing Parent consultation with at least three (3) Business Days’ notice of its intent outside legal counsel that failure to take such action, including action is reasonably likely to be inconsistent with the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so in order to comply with its Company Board’s fiduciary duties under applicable lawLaw and the Company has complied in all material respects with the applicable provisions of Section 4.4 and this Section 4.6 with respect thereto. Prior to effecting a Change in Recommendation (by itself) or Change in Recommendation and termination of this Agreement in accordance with Section 7.1(h) as provided above, then the Company shall provide Purchaser with four Business Days’ prior written notice (it being understood and agreed that any amendment to the financial terms or any other material term of such applicable Alternative Transaction shall, in each case, require a new written notice and a new period of four Business Days commencing at the time of such new notice) advising Purchaser of its intention to effect a Change in Recommendation (by itself) or Change in Recommendation and termination of this Agreement in accordance with Section 7.1(h) as provided above, and specifying in reasonable detail the material terms and conditions of, and the identity of any Person proposing, such Alternative Transaction, or a detailed written description of the material facts and circumstances relating to such Company Intervening Event, as applicable, and that the Company shall, during such time and if requested by Purchaser, engage in good-faith negotiations with Purchaser (including by making its officers and its financial and legal advisors reasonably available to negotiate) to amend this Agreement (x) such that the proposed Alternative Transaction would no longer constitute (or be reasonably expected to lead to) a Superior Proposal or (y) in a manner that obviates the need to effect a Change in Recommendation, as applicable. The Parties agree that nothing in this Section 4.6(c) shall in any way limit or otherwise affect Purchaser’s right to terminate this Agreement pursuant to Section 7.1(g) at such time as the requirements of such subsection have been met. Any such Change in Recommendation shall not (1) change the approval of this Agreement or any other approval of the Company Board may withdrawin any respect that would have the effect of causing any state corporate takeover statute or other similar statute to be applicable to the Transactions, or modify or (2) change in a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders obligation of the Company to present the Transactions at the Special Meeting as soon as practicable following the Public Hearing. Notwithstanding any Change in Recommendation, if this Agreement is not otherwise terminated by either the Company or does not believe that Purchaser in accordance with the Merger terms hereof, this Agreement shall be submitted to the Qualified Voters at the Special Meeting for the purpose of obtaining the Member Approval, and the Agreement are in the best interests of the stockholders nothing contained herein, including any Rights of the Company to take certain actions pursuant to Section 4.4(a), shall be deemed for all purposes to relieve the Company of this Agreement to be a Change in Board Recommendationsuch obligation.

Change in Recommendation. Except as set forth in this Section 6.05(c)If, prior to the Company Stockholder Approval, the Company Board or the Special Committee determines, in its good faith judgment and after consulting with outside legal counsel (who may be the Independent Company’s regularly engaged outside legal counsel or counsel to the Special Committee), that making a Change in the Company Recommendation (as defined below) is necessary in order for the Company Board to comply with its fiduciary duties to the Company’s stockholders under applicable Law, then the Company Board or the Special Committee shall not may make a Change in the Company Recommendation in accordance with this Section 5.06 and following such Change in Company Recommendation, the Company may terminate this Agreement solely in accordance with Section 7.01(d). “Change in the Company Recommendation” means the Special Committee or Company Board’s (i) withdrawfailure to make, withdrawal of, or modify or change modification in a manner adverse to Parent and Merger CoTAS of the Company Recommendation, (ii) failure to publicly confirm the approval Company Recommendation within seven days following TAS’s written request, (iii) recommendation or recommendation endorsement of this Agreement a Competing Transaction or (iv) resolution or public announcement of an intention to do any of the Merger by foregoing. The Company Board may not make a Change in the Company Recommendation unless (i) at least two Business Days prior to taking such action TAS shall have received written notice from the Company (an “Adverse Recommendation Notice”) (A) advising that the Company Board intends to make such Change in the Company Recommendation, (B) if such Change in Company Recommendation is made in response to a Superior Proposal, advising TAS that the Company Board has received a Superior Proposal, and (C) if such Change in Company Recommendation is made in response to a Superior Proposal, containing all information required by Section 5.06(c), together with copies of any written offer or proposal in respect of such Superior Proposal (it being understood and agreed that any committee thereof); material amendment to the financial terms or other material terms of such Superior Proposal shall require a new Adverse Recommendation Notice and a new two (2) Business Day period) and (ii) approveduring such two Business Day period the Special Committee shall have negotiated in good faith with TAS concerning any amendments proposed by TAS to this Agreement and to the transactions contemplated hereby. Nothing contained in this Agreement shall prohibit the Company, adopt the Company Board or recommend any Acquisition Proposal; the Special Committee from disclosing to the Company Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, if, in the good faith judgment of the Company Board or (iii) approve the Special Committee, after consultation with its outside legal and financial advisors, such disclosure is required in order for the Company Board or recommendthe Special Committee, as applicable, to comply with its fiduciary obligations, or allow is otherwise required under applicable Law. Nothing in this Agreement shall prohibit the Company Board or any Subsidiary to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to, or that is reasonably expected to result in, any Acquisition Proposal (other than the Special Committee from making a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, (x) Change in response Company Recommendation prior to the receipt of an unsolicited Acquisition Proposal, Company Stockholder Approval if the Company Board (or any committee thereof) (A) Special Committee, as applicable, determines in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it such action is required to do so necessary under applicable Law in order for the directors to comply with its their fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such action, and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition Proposal, (2) during such three (3)-Business Day period, the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent to make such an offer, and (3), in the event of any amendment to the financial or other material terms of such Superior Proposal, the Company Board shall deliver to Parent an additional written Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional three (3) Business Days after ParentCompany’s receipt of such additional Notice of Superior Proposal, and (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after first providing Parent with at least three (3) Business Days’ notice of its intent to take such action, including the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties under applicable law, then the Company Board may withdraw, or modify or change in a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption of this Agreement by the stockholders of the Company or does not believe that the Merger and the Agreement are in the best interests of the stockholders of the Company shall be deemed for all purposes of this Agreement to be a Change in Board Recommendationstockholders.

Change in Recommendation. Except as set forth in this Section 6.05(c), If the Company Board or Special Committee determines, in its good faith judgment prior to the receipt of the Company Stockholders Approval and after consulting with outside legal counsel (who may be the Independent Company’s regularly engaged outside legal counsel or counsel to the Special Committee), that the failure to make a Change in the Company Recommendation (as defined below) or to terminate this Agreement in accordance with Section 7.01(iv)(b) would violate its fiduciary duties to the Company’s stockholders under applicable Law, then the Company Board or Special Committee shall not may make a Change in the Company Recommendation and/or terminate this Agreement pursuant to Section 7.01(iv)(b). “Change in the Company Recommendation” means the Special Committee or Company Board’s (i) withdrawfailure to make, withdrawal of, or modify or change modification in a manner adverse to Parent and or Merger CoSub of the Company Recommendation, (ii) failure to publicly confirm the approval Company Recommendation within seven days following Parent’s written request, (iii) recommendation or recommendation endorsement of this Agreement a Competing Transaction or (iv) resolution or public announcement of an intention to do any of the Merger by foregoing. Neither the Company Board (or any committee thereof); (ii) approve, adopt or recommend any Acquisition Proposal; or (iii) approve or recommend, or allow nor the Special Committee shall make a Change in the Company Recommendation or any Subsidiary terminate this Agreement pursuant to enter into, any letter of intent, acquisition agreement or other similar agreement with respect to, or that is reasonably expected Section 7.01(iv)(b) unless (i) at least three Business Days prior to result in, any Acquisition Proposal (other than a confidentiality agreement expressly permitted by Section 6.05(b)). Notwithstanding the foregoing, (x) in response to the receipt of an unsolicited Acquisition Proposal, if taking such action Parent shall have received written notice from the Company Board (or any committee thereofan “Adverse Recommendation Notice”) (A) determines in good faith (after consultation with its independent financial advisor) that such Acquisition Proposal is credible and is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw, or modify or change in a manner adverse to advising Parent and Merger Co, the Company Board Recommendation, provided, however, that (1) the Company shall have first provided at least three (3) Business Days’ prior written notice to Parent of its intent to take such action, and Parent does not make, after being provided with reasonable opportunity to negotiate with the Company and its Representatives, within three (3) Business Days of receipt of such written notification, an offer that the Company Board determines, in good faith (after consultation with its independent financial advisor and legal counsel), is at least as favorable to the Company and its stockholders as the applicable Acquisition or Special Committee has received a Superior Proposal, (2B) during such three (3)-Business Day period, advising that the Company shall negotiate in good faith with Parent (to the extent Parent wishes to negotiate) to enable Parent Board or Special Committee intends to make such an offerChange in the Company Recommendation or to terminate this Agreement pursuant to Section 7.01(iv)(b), as applicable, and (3C) containing all information required by Section 5.04(c), in the event together with copies of any written offer or proposal in respect of such Superior Proposal (it being understood and agreed that any material amendment to the financial terms or other material terms of such Superior Proposal, the Company Board Proposal shall deliver to Parent an additional written require a new Adverse Recommendation Notice of Superior Proposal, and the three (3)-Business Day period referenced above shall be extended for an additional a new three (3) Business Days after Parent’s receipt of such additional Notice of Superior Proposal, Day period) and (yii) other than in connection with an Acquisition Proposal, if during such three Business Day period the Company Board determines and Special Committee shall have negotiated in good faith (after first providing with Parent concerning any amendments proposed by Parent to this Agreement and to the transactions contemplated hereby. Any disclosure that the Company Board may be compelled to make with at least three (3) Business Days’ notice of its intent respect to take such action, including the reasons therefor, and consultation with its independent financial advisor and upon the advice of its outside legal counsel) that it is required to do so an Acquisition Proposal or otherwise in order to comply with its fiduciary duties under applicable law, then Law or Rule 14d-9 or 14e-2 under the Company Board may withdraw, or modify or change in Exchange Act will not constitute a manner adverse to Parent and Merger Co, the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a “Change in Board Recommendation”). Any action by the Company Board or a committee thereof that is or becomes disclosed publicly that is intended to indicate that the Company Board (or any committee thereof) does not unconditionally support adoption violation of this Agreement by the stockholders of the Company or does not believe Agreement; provided, that the Merger and the Agreement are in the best interests of the stockholders of the Company shall be deemed for all purposes of this Agreement to be any such disclosure that would constitute a Change in Board Company Recommendation, and any disclosure of a decision to terminate this Agreement pursuant to Section 7.01(iv)(b), shall be made only in compliance with this Section 5.04(d).