Common use of Change of Recommendation Clause in Contracts

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Board nor any committee thereof shall (i) withdraw or rescind (or modify in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company Recommendation”), (ii) approve, declare the advisability of or recommend to the holders of Shares the adoption of, or publicly announce an intention to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose or announce an intention to take any of the foregoing actions (any action described in clauses (i), (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with financial and legal advisors as required by the Merger Agreement, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make a

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Company Board nor any committee thereof shall (i) withdraw (A) change, qualify, withdraw, withhold, or rescind modify (or modify propose publicly to change, qualify, withdraw, withhold, or modify) in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor Merger Sub the approval of the Merger this Agreement, the Merger and the Offer other Transactions, or the recommendation by the Company Board that the stockholders of the Company adopt this Agreement, (B) adopt, approve or recommend (or propose publicly to adopt, approve or recommend) any alternative Company Takeover Proposal or agree to take any such action, or (C) fail to recommend against any alternative Company Takeover Proposal that is subject to Regulation 14D under the Exchange Act (which failure to recommend shall be made by means of a Solicitation/Recommendation Statement on Schedule 14D-9, if applicable, within ten (10) Business Days after the commencement (determined using Rule 14d-1(g)(3) under the Exchange Act) of such alternative Company Takeover Proposal) (any action described in this clause (i) being referred to herein as an “Company RecommendationAdverse Recommendation Change”), ) or (ii) approve, recommend or otherwise declare the advisability of or recommend to the holders of Shares the adoption ofadvisable, or publicly announce an intention to approve, declare allow the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Company Subsidiary to execute or enter into, into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement-in-principle, merger agreement, acquisition joint venture agreement, partnership agreement or other similar agreement related to any relating to, an alternative Company Takeover Proposal, Proposal (other than an Acceptable Confidentiality Agreement Agreement) (a an “Company Alternative Acquisition Agreement”), or (iv) publicly propose resolve or announce an intention agree to take any of such action. Notwithstanding anything in this Agreement to the foregoing actions (any action described in clauses (icontrary, but subject to Section 4.7(e), (ii), (iii) or (iv) being referred to as an “the Company Adverse Recommendation Change”). The Terremark Board may at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of the Company Stockholder Approval, Effective Time (1) effect a Company an Adverse Recommendation Change only in response to an alternative Company Takeover Proposal and concurrently cause the Company to terminate this Agreement pursuant to Section 6.1(d)(ii), if the Terremark Company Board determines concludes in good faith, after consultation with the Company’s financial advisor, that such Company Takeover Proposal constitutes a Superior Company Proposal and legal advisors as required by the Merger AgreementCompany Board concludes in good faith, after consultation with outside counsel, that the failure to take such action would reasonably be inconsistent with expected to constitute a breach of its fiduciary duties under applicable law. Notwithstanding anything Applicable Law, or (2) effect an Adverse Recommendation Change following or in response to any material event, fact or circumstance, or a material development or change in any facts or circumstances (including any acceleration or deceleration of existing changes to the contraryextent of the acceleration or deceleration), the Terremark existence, magnitude or consequences of which were not known and were not reasonably foreseeable by the Company Board at or prior to the date hereof (and not relating to any Company Takeover Proposal, which shall not be permitted governed by the foregoing clause (1)) (such material event, fact, circumstance, development or change, an “Intervening Event”) if the Company Board concludes in good faith, after consultation with outside counsel, and taking into account all such factors as the Company Board may deem appropriate, that the failure to make aeffect such Adverse Recommendation Change and/or termination would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law.

Change of Recommendation. The Pursuant to a meeting duly called and held, the GenTek Board, among other things, has unanimously (i) determined that the Merger Agreement provides thatand the transactions contemplated thereby, are fair to, and in the best interests of, GenTek and the stockholders of GenTek, (ii) duly approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Merger and the Offer, and (iii) recommended that the stockholders of GenTek accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if required by applicable law, adopt the Merger Agreement and approve the Merger (the “Company Board Recommendation”). The GenTek Board may withdraw, modify or amend the Company Board Recommendation in certain circumstances as summarized herein and as specified in detail in Section 5.4(e) of the Merger Agreement. Pursuant to the Merger Agreement, except as provided described below, neither the Terremark GenTek Board nor any committee thereof shall (i) change, qualify, withdraw or rescind (modify, or modify propose publicly to change, qualify, withdraw or modify, in a manner adverse to Parent), or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of adopt or recommend to the holders of Shares the adoption ofrecommend, or propose publicly announce an intention to approve, declare the advisability of adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal, (iii) make any recommendation in connection with a tender offer or cause, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, exchange offer other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”)recommendation against such offer, or (iv) publicly propose exempt any person from the restrictions contained in any state takeover or announce an intention to take any similar laws, including Section 203 of the foregoing actions (DGCL, any action described in clauses clause (i), (ii), (iii) or (iv) being referred to as an a “Change of Recommendation” or (v) enter into or authorize GenTek to enter into any letter of intent, merger, acquisition, or similar agreement with respect to any Acquisition Proposal other than any confidentiality agreement to be entered into by GenTek (each a “Company Adverse Recommendation ChangeAcquisition Agreement”). The Terremark Board may Under the Merger Agreement, at any time prior to the earlier Acceptance Date, the GenTek Board may, in response to occur a Superior Proposal that has not been withdrawn or abandoned, make either (i) a Change of Recommendation if the GenTek Board has concluded in good faith that the failure of the Offer Closing and Terremark’s receipt GenTek Board to effect a Change of Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the stockholders of GenTek under applicable law and/or (ii) terminate the Merger Agreement to enter into a Company Acquisition Agreement with respect to such Superior Proposal (a “Superior Termination”); provided that GenTek may not effect such Change of Recommendation or a Superior Termination, in each case in connection with a Superior Proposal, unless both of the Company Stockholder Approvalfollowing conditions have been met: (i) GenTek shall have provided prior written notice to Parent, at least 48 hours or such greater time as necessary to include one entire business day (ending at midnight) in advance (the “Notice Period”), of its intention to effect a Company Adverse Change of Recommendation and/or Superior Termination in response to such Superior Proposal, which notice shall in addition specify the material terms and conditions (including price) of any such Superior Proposal (including the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such notice shall have provided a copy of the relevant proposed acquisition agreement and other material documents related thereto with the party making such Superior Proposal; and (ii) prior to effecting such Change only if of Recommendation and/or Superior Termination in response to a Superior Proposal, GenTek shall, and shall cause its legal and financial advisors to, during the Terremark Board determines Notice Period, negotiate with Parent in good faithfaith (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions the Merger Agreement so that such Superior Proposal ceases to constitute a Superior Proposal. Reasonable Best Efforts to Consummate the Merger; Regulatory Filings. GenTek and Parent agreed in the Merger Agreement to use their reasonable best efforts to (i) take, or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by the Merger Agreement as promptly as practicable, (ii) obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent or GenTek or any of their respective subsidiaries, or to avoid any action or proceeding by any governmental entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution and delivery of the Merger Agreement and the consummation of the transactions contemplated therein and (iii) as promptly as reasonably practicable, and in any event within 15 business days after consultation the date of the Merger Agreement, make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with financial respect to this Agreement, the Offer and legal advisors as the Merger required under the Exchange Act (and any other applicable federal or state securities laws), the HSR Act (with a request for early termination under the HSR Act) and any other applicable law. GenTek and Parent also agreed to give any notices to third parties and use commercially reasonable efforts to obtain any third party consents necessary, proper or advisable to consummate the transactions contemplated by the Merger Agreement, required to prevent a material adverse effect from occurring to GenTek prior to or after the Effective Time and certain specified third party consents. 22 Table of Contents Additionally, Parent, the Purchaser and GenTek each agreed to: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any governmental entity with respect to the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement, (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding and (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other governmental entity regarding the Offer or the Merger. Parent, the Purchaser and GenTek also agreed to use their respective reasonable best efforts to resolve any objections that may be asserted by any governmental entity with respect to the failure transactions contemplated by the Merger Agreement and to take such action would be inconsistent with its fiduciary duties under applicable lawuse their reasonable best efforts to cause the Closing to occur as promptly as practicable, including by defending against any lawsuits, actions or proceedings, judicial or administrative, challenging the Merger Agreement or the consummation of the transactions contemplated thereby, and seeking to have any restraint or prohibition entered or imposed by any court or other governmental entity that is not yet final and nonappealable vacated or reversed. Notwithstanding anything the foregoing, neither Parent nor GenTek will be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the contraryassets, operations or conduct of their business in a specified manner, or permit the Terremark Board shall not be permitted to make asale, holding separate or other disposition of, any assets of Parent, GenTek or their subsidiaries or affiliates.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of the Company nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw (or rescind qualify, amend or modify in a manner adverse to Parent) or publicly propose to withdraw (or qualify, amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by such Board of Directors or such committee thereof of this Agreement, or the Merger or the other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly announce to recommend, adopt or approve, any Alternative Company Transaction Proposal, (C) make any public recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or fail to recommend against acceptance of such tender or exchange offer by the close of business on the 10th business day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act (it being understood and agreed that the Company’s Board of Directors and the Special Committee may take no position with respect to an intention Alternative Company Transaction Proposal that is a tender offer or exchange offer during the period referred to withdraw in this clause) or rescind (D) other than with respect to a tender offer or exchange offer, fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material modification thereto shall have been made publicly or sent or given to the Company Stockholders (or modify any Person or Group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause (i) being referred to as a manner adverse to Parent), its recommendation in favor of the Merger Agreement, the Merger and the Offer (the “Company RecommendationAdverse Recommendation Change”), ) or (ii) approveexcept as expressly provided herein, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare or allow the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Acquisition Agreement”)) (A) constituting, or (iv) publicly propose or announce an intention to take providing for, any of the foregoing actions (any action described in clauses (i), (ii), (iii) Alternative Company Transaction Proposal or (ivB) being referred requiring it (or that would require it) to as an “Company Adverse Recommendation Change”)abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement. The Terremark Board may Notwithstanding anything to the contrary set forth in this Section 5.2 or in any other provision of this Agreement, at any time prior to the earlier to occur of the Offer Closing and Terremark’s receipt of obtaining the Company Stockholder Approval, effect the Board of Directors of the Company may, subject to compliance with Section 5.2(e), solely in response to either (x) a Company Intervening Event or (y) a Superior Company Proposal, make a Company Adverse Recommendation Change only or, solely in response to an Alternative Company Transaction Proposal, terminate this Agreement pursuant to Section 7.1(c)(i) in order to enter concurrently into a definitive agreement with respect to a Superior Company Proposal, if in either case the Terremark Board of Directors of the Company determines in good faith, faith after consultation with the Special Committee and its outside legal counsel and financial and legal advisors as required by the Merger Agreementadvisor, that the failure to take such action would be likely to be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make aLaw.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Company Board nor any committee thereof shall will (i) withdraw fail to make, withdraw, amend or rescind (modify, or modify publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementPurchaser, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or cause, authorize or permit Terremark exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within ten (10) business days after the commencement of its subsidiaries to execute or enter intosuch offer, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation, (v) resolve or announce an intention agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”)) or (vi) resolve or agree to change or modify the election that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the earlier Acceptance Time, the Company Board, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to occur enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Offer Closing and Terremark’s receipt of Merger Agreement,” but only if, in either case, the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementCompany Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark Company Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • the Company promptly notifies Parent in writing at least three (3) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so; • the Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; • during the Notice Period, if requested by Parent, the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three business days remain in the Notice Period subsequent to the time the Company notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any Table of Contents way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be a breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the Company Board has (A) provided to Parent at least four (4) business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (B) during such four (4) business day period, if requested by Parent, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change of Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two (2) business days after requested to do so by Parent. Access to Information The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations. Notice of Certain Events The Merger Agreement provides that, in connection with the continuing operation of the business of the Company and its Subsidiaries, from the date of the Merger Agreement until the Effective Time, subject to applicable law, the executive officers of the Company will consult with Parent in good faith on a reasonable and prompt basis to report material (individually or in the aggregate) operational developments, the status of relationships with customers, resellers, partners, suppliers, licensors, licensees, distributors and others having material business relationships with the Company, the status of ongoing operations and other matters reasonably requested by Parent pursuant to procedures reasonably requested by Parent; provided that no such consultation will affect the representations, warranties, covenants, agreements or obligations of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under the Merger Agreement. In addition, the Merger Agreement provides that the Company will promptly notify Parent of any written notice or other written communication (or, to the knowledge of the Company, any other notice or communication) from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by the Merger Agreement, any notice or other communication from any governmental authority in connection with the transactions contemplated by the Merger Agreement, any Proceeding commenced or, to the Knowledge of the Company (as defined in the Merger Agreement), threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries that would have been required to have been disclosed pursuant to the Merger Agreement or which relates to the consummation of the transactions contemplated by the Merger Agreement, any written notice or other written communication (or, to the Knowledge of the Company, any other notice or communication) from any major customer or major supplier that such major customer or major supplier is terminating its relationship with the Company or any of its Subsidiaries as a result of the Table of Contents transactions contemplated by the Merger Agreement or any inaccuracy of any representation or warranty or breach of covenant or agreement in the Merger Agreement that would reasonably be expected to cause any of the Offer Conditions not to be satisfied. Director and Officer Indemnification The Merger Agreement provides that, subject to certain limitations on premiums, for six years after the Effective Time, Parent will, or will cause the Surviving Corporation to, maintain and extend all existing officers’ and directors’ liability insurance of the Company (or equivalent prepaid “tail” or “runoff” policies obtained prior to the Effective Time) with respect to acts or omissions occurring prior to the Effective Time covering each Person covered as of the date of the Merger Agreement by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of the Merger Agreement; provided that neither Parent nor Purchaser shall be obligated to pay annual premiums in excess of 200% of the amount the Company paid for its officers’ and directors’ liability insurance policy. The Merger Agreement provides that, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurred, the Surviving Corporation will, and Parent will cause the Surviving Corporation to, fulfill and honor in all respects the obligations of the Company and its Subsidiaries to: (i) each indemnification agreement disclosed pursuant to the Merger Agreement with any person who is now, or has been at any time prior to the date of the Merger Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (an “Indemnified Party”); and (ii) any indemnification provision and any exculpation provision set forth in the certificate of incorporation or bylaws of the Company as in effect on the date of the Merger Agreement, subject in each case to any limitations imposed by the certificate of incorporation or bylaws of the Company as in effect on the date of the Merger Agreement and as imposed from time to time under applicable law. The Merger Agreement provides that the obligations of Parent and the Surviving Corporation under the provisions of the Merger Agreement which are summarized in this paragraph will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the written consent of such Indemnified Party and that the Indemnified Parties will be third-party beneficiaries of those provisions and entitled to enforce the covenants contained in those provisions.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Cerner Board nor any committee thereof shall will (i) withdraw fail to make, withdraw, amend or rescind (modify, or modify publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementPurchaser, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or cause, authorize or permit Terremark exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within 10 Business Days after the commencement of its subsidiaries to execute or enter intosuch offer, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation, (v) resolve or announce an intention agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”)) or (vi) resolve or agree to change or modify the election of the Cerner Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the earlier to occur Acceptance Time, the Cerner Board, following receipt of and on account of a Superior Proposal that did not result from or arise out of a breach of Section 7.02(a) of the Offer Closing Merger Agreement (the provisions of which are summarized above in the first paragraph of subsection entitled “No Solicitation and Terremark’s receipt Superior Proposal Provisions”), may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to enter into a definitive agreement with respect to such Superior Proposal in accordance with the Fiduciary Termination Provision summarized below under “Termination of the Company Stockholder ApprovalMerger Agreement,” but only if, effect a Company Adverse Recommendation Change only if in either case, the Terremark Cerner Board determines in good faith, faith after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementCerner Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark Cerner Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision summarized below under “Termination of the Merger Agreement” unless: • Cerner promptly notifies Parent (the “Adverse Recommendation Change Notice”) in writing at least five Business Days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so, it being understood that none of (i) the determination in itself by the Cerner Board (or a committee thereof) that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, (ii) the delivery in itself by Cerner to Parent of the notifications required by Section 7.02(c) of the Merger Agreement or of an Adverse Recommendation Change Notice, or (iii) the public disclosure of the matters described in clause (i) or (ii), will constitute an Adverse Recommendation Change (in the case of each of clauses (i), (ii) and (iii), to the extent in accordance with the Merger Agreement); • Cerner attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; and • during the Notice Period, if requested by Xxxxxx, Cerner and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including any revision in price, to ensure that at least two Business Days remain in the Notice Period subsequent to the time Cerner notifies Parent of any such material revision.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of Liberty nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw or rescind qualify (or amend or modify in a manner adverse to Parent), the Company) or publicly announce an intention propose to withdraw or rescind qualify (or amend or modify in a manner adverse to Parentthe Company), its the approval, recommendation or declaration of advisability by such Board of Directors or such committee thereof of this Agreement or that the Liberty Ventures Stockholders vote in favor of the Merger AgreementSplit-Off, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Liberty Ventures Transaction Proposal, including by, in the Merger and case of a tender or exchange offer, failing to promptly recommend rejection of such offer or (C) fail to publicly reaffirm its approval, recommendation or declaration of advisability by such Board of Directors that the Offer Liberty Ventures Stockholders vote in favor of the Split-Off within five (5) Business Days after the Company so requests in writing if an Alternative Liberty Ventures Transaction Proposal or any modification thereto shall have been made publicly or sent or given to the Liberty Ventures Stockholders (or any Person or group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Liberty Ventures Transaction Proposal) (any action described in this clause (i) being referred to as a “Company RecommendationLiberty Adverse Recommendation Change”), ) or (ii) approve, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark allow Liberty or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Liberty Ventures Acquisition Agreement”) (other than a confidentiality agreement entered into pursuant to Section 5.3(b)(i)) (A) constituting, or relating to, any Alternative Liberty Ventures Transaction Proposal or (ivB) publicly propose requiring it (or announce an intention that would require it) to take any of abandon, terminate or fail to consummate the foregoing actions (any action described transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in clauses (i), (ii), (iiithis Section 5.3(d) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may in any other provision of this Agreement, at any time prior to obtaining the earlier to occur of the Offer Closing and Terremark’s receipt of the Company Liberty Stockholder Approval, effect solely in response to a Company Liberty Ventures Intervening Event or Superior Liberty Ventures Proposal, the Board of Directors of Liberty (or any committee thereof) may make a Liberty Adverse Recommendation Change Change, if and only if all of the Terremark Board determines in good faith, after consultation with financial and legal advisors as required by the Merger Agreement, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make afollowing conditions are met:

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither Neither the Terremark Board of Directors of the Company nor any committee thereof shall shall, directly or indirectly, (i) (A) withdraw or rescind qualify (or amend or modify in a manner adverse to Parent), Liberty) or publicly announce an intention propose to withdraw or rescind qualify (or amend or modify in a manner adverse to ParentLiberty), its the approval, recommendation in favor or declaration of the Merger advisability by such Board of Directors or such committee thereof of this Agreement, or the Merger and other transactions contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Alternative Company Transaction Proposal, including by, in the Offer case of a tender or exchange offer, failing to promptly recommend rejection of such offer or (C) fail to publicly reaffirm its approval or recommendation of this Agreement within five (5) Business Days after Liberty so requests in writing if an Alternative Company Transaction Proposal or any modification thereto shall have been made publicly or sent or given to the Company Stockholders (or any Person or group of Persons shall have publicly announced an intention, whether or not conditional, to make an Alternative Company Transaction Proposal) (any action described in this clause (i) being referred to as a “Company RecommendationAdverse Recommendation Change”), ) or (ii) approve, declare the advisability of approve or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approveapprove or recommend, declare or allow the advisability of or recommend the adoption of, any Takeover Proposal, (iii) or cause, authorize or permit Terremark Company or any of its subsidiaries Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement related to any Takeover Proposalagreement, other than an Acceptable Confidentiality Agreement arrangement or understanding (a “Company Acquisition Agreement”) (other than a confidentiality agreement entered into pursuant to Section 5.2(b)(i)) (A) constituting, or relating to, any Alternative Company Transaction Proposal or (ivB) publicly propose requiring it (or announce an intention that would require it) to take any of abandon, terminate or fail to consummate the foregoing actions (any action described transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in clauses (i), (ii), (iiithis Section 5.2(d) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may in any other provision of this Agreement, at any time prior to obtaining the earlier Company Stockholder Approvals, solely in response to occur a Company Intervening Event or Superior Company Proposal, the Board of the Offer Closing and Terremark’s receipt Directors of the Company Stockholder Approval, effect and the Special Committee may make a Company Adverse Recommendation Change only Change, if all of the Terremark Board determines in good faith, after consultation with financial and legal advisors as required by the Merger Agreement, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law. Notwithstanding anything to the contrary, the Terremark Board shall not be permitted to make afollowing conditions are met:

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Company Board nor any committee thereof shall will (i) withdraw fail to make, withdraw, amend or rescind (modify, or modify publicly propose to withhold, withdraw, amend or modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of the Merger AgreementPurchaser, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any tender offer or cause, authorize or permit Terremark exchange offer (other than the Offer or any other tender offer or exchange offer by Parent or Purchaser) for the Shares within ten (10) business days after the commencement of its subsidiaries to execute or enter intosuch offer, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation, (v) resolve or announce an intention agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”)) or (vi) resolve or agree to change or modify the election of the Company Board that the Merger Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL. The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, at any time prior to the earlier Acceptance Time, the Company Board, following receipt of and on account of a Superior Proposal, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to occur enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Offer Closing and Terremark’s receipt of Merger Agreement,” but only if, in either case, the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementCompany Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark Company Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • the Company promptly notifies Parent in writing at least three (3) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so; Table of Contents • the Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; • during the Notice Period, the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three (3) business days remain in the Notice Period subsequent to the time the Company notifies Parent of any such material revision; and • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be in breach of its fiduciary duties under applicable law; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change for an Intervening Event unless the Company Board has (A) provided to Parent at least four (4) business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (B) during such four (4) business day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.02 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two (2) Business Days after requested to do so by Parent. Access to Information The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data and other information as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations.

Change of Recommendation. The Merger Agreement provides that, except as provided below, neither the Terremark Company Board nor any committee thereof shall will (i) withdraw (A) fail to make, (B) withdraw, amend or rescind modify, or (C) publicly propose to withhold, withdraw, amend or modify modify, in a manner adverse to Parent), Parent or publicly announce an intention to withdraw or rescind (or modify in a manner adverse to Parent), its recommendation in favor of Purchaser the Merger Agreement, the Merger and the Offer (the “Company Board Recommendation”), (ii) approve, declare the advisability of endorse, adopt or recommend to the holders of Shares the adoption ofrecommend, or publicly announce an intention propose to approve, declare the advisability of endorse, adopt or recommend the adoption ofrecommend, any Takeover Acquisition Proposal or Superior Proposal, (iii) fail to recommend against acceptance of any other tender offer or causeexchange offer for the Shares within ten (10) business days after the commencement of such offer, authorize or permit Terremark or any of its subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement-in-principle, merger agreement, acquisition agreement or other similar agreement related to any Takeover Proposal, other than an Acceptable Confidentiality Agreement (a “Company Acquisition Agreement”), or (iv) publicly propose make any public statement inconsistent with the Board Recommendation or announce an intention (v) resolve or agree to take any of the foregoing actions (any action described in clauses (i)of the foregoing actions, (ii), (iii) or (iv) being referred to as an “Company Adverse Recommendation Change”). The Terremark Board may Merger Agreement provides that, notwithstanding the provisions of the Merger Agreement summarized above in this subsection entitled “Change of Recommendation” or any other provisions of the Merger Agreement, the Company Board, following receipt of and on account of a Superior Proposal, at any time prior to the earlier Acceptance Time, may (i) make an Adverse Recommendation Change, or (ii) terminate the Merger Agreement to occur enter into a definitive agreement with respect to such Superior Proposal in accordance with the applicable termination provision summarized below under “Termination of the Offer Closing and Terremark’s receipt of Merger Agreement,” but only if, in either case, the Company Stockholder Approval, effect a Company Adverse Recommendation Change only if the Terremark Board determines in good faith, after consultation with financial and outside legal advisors as required by counsel to the Merger AgreementCompany Board, that the failure to take such action would be inconsistent with a breach of its fiduciary duties under applicable law. Notwithstanding anything to The Merger Agreement provides that the contrary, the Terremark Company Board shall will not be permitted to make aan Adverse Recommendation Change or terminate the Merger Agreement under the Fiduciary Termination Provision (as defined below) unless: • the Company promptly notifies Parent in writing at least four (4) business days before making an Adverse Recommendation Change or terminating the Merger Agreement (the “Notice Period”), of its intention to do so; • the Company attaches to such notice the most current version of the proposed agreement or a reasonably detailed summary of all material terms of any such Superior Proposal (which version or summary will be updated on a prompt basis) and the identity of the third party making the Superior Proposal; • during the Notice Period, the Company and its financial and legal advisors negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments, with the Notice Period being extended each time there is any material revision to the terms of a Superior Proposal, including, any revision in price, to ensure that at least three business days remain in the Notice Period subsequent to the time the Company notifies Parent of any such material revision; and Table of Contents • Parent does not make, within the Notice Period, an offer that is determined by the Company Board in good faith, after consulting with its outside counsel and financial advisor of nationally recognized reputation, to be at least as favorable to the stockholders of the Company as such Superior Proposal. The Merger Agreement provides that, notwithstanding the other provisions of the Merger Agreement, the Company Board may, in response to a material fact, event, change, development or set of circumstances (other than an Acquisition Proposal occurring or arising after the date of the Merger Agreement) that was not known to the Company Board nor reasonably foreseeable by the Company Board as of or prior to the date of the Merger Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”), withdraw or modify, or fail to make, in a manner adverse to Parent or Purchaser, the Board Recommendation (which will be deemed to be an Adverse Recommendation Change) if the Company Board determines in good faith, after consultation with outside legal counsel to the Company Board, that, in light of such Intervening Event, the failure of the Company Board to effect such an Adverse Recommendation Change would be a breach of its duties under applicable law or regulation; provided that no fact, event, change, development or set of circumstances will constitute an Intervening Event if such fact, event, change, development or set of circumstances resulted from or arose out of the announcement, pendency or consummation of the Offer or the Merger; and provided, further, that the Company Board will not be entitled to exercise its right to make an Adverse Recommendation Change pursuant to the provisions of the Merger Agreement which are summarized in this paragraph unless the Company Board has (i) provided to Parent at least four business days’ prior written notice advising Parent that the Company Board intends to take such action and specifying the facts underlying the Company Board’s determination that an Intervening Event has occurred, and the reasons for the Adverse Recommendation Change, in reasonable detail, and (ii) during such four business day period, if requested by Xxxxxx, engaged in good faith negotiations with Parent to amend the Merger Agreement in such a manner that obviates the need for an Adverse Recommendation Change as a result of the Intervening Event. The Merger Agreement provides that nothing contained in Section 7.03 of the Merger Agreement (the provisions of which are summarized above under “No Solicitation and Superior Proposal Provisions” and “Change in Recommendation”) will prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the Exchange Act with regard to an Acquisition Proposal; provided that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) will be deemed to be an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Board Recommendation (i) in such communication or (ii) within two business days after requested to do so by Parent. Access to Information The Merger Agreement provides that from the date of the Merger Agreement until the Effective Time, the Company will give Parent and its Representatives reasonable access to the offices, properties, books, records, contracts, governmental authorizations, documents, directors, officers and employees of the Company and its Subsidiaries and furnish certain financial, tax and operating data as reasonably requested subject in each case to certain limitations relating to confidentiality, attorney-client privilege, and limitations under applicable law or regulations.