Common use of Company Board Recommendation Clause in Contracts

Company Board Recommendation. (a) Neither the Company Board nor any committee thereof shall withhold, withdraw, amend, modify or qualify in a manner adverse to Parent or Acquisition Sub, or publicly propose to withhold, withdraw, amend, modify or qualify in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation (a “Company Board Recommendation Change“); provided, however, that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement at any time prior to the Effective Time, the Company Board (or any committee thereof) may effect a Company Board Recommendation Change if, (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (B) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Notice.

Company Board Recommendation. (a) Neither the Company Board nor any committee thereof shall (i) withhold, withdraw, amend, amend or modify or qualify in a manner adverse to Parent or Acquisition SubParent, or publicly propose to withhold, withdraw, amend, amend or modify or qualify in a manner adverse to Parent or Acquisition Merger Sub, the Company Board Recommendation Board’s recommendation to approve the Merger, (ii) approve, endorse or recommend any Acquisition Proposal or Acquisition Transaction or (iii) in the event that a “tender or exchange offer for Company Common Stock that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent, fail to confirm the Company Board Recommendation within 10 Business Days after a written request from Parent to do so following announcement of such tender or exchange offer (any of the foregoing, a “Recommendation Change“”). Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Stockholder Approval, and subject to the Company not knowingly and intentionally materially violating the restrictions set forth in Section 5.1, in the event the Company shall have received an Acquisition Proposal that has not been withdrawn and the Company Board shall have determined in good faith, after taking into consideration the advice of and consultation with its financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, the Company Board may (1) effect a Recommendation Change and/or (2) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law; provided, however, that a “stopthe Company shall not terminate this Agreement pursuant to the foregoing clause (2), look and listen” communication by any purported termination pursuant to the foregoing clause (2) shall be void and of no force or effect, unless concurrently with such termination the Company pays the Termination Fee payable pursuant to Section 7.3; and provided, further, that the Company Board (or any committee thereof) may not effect a Recommendation Change pursuant to the Company Stockholders foregoing clause (1) or terminate this Agreement pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement at any time prior to the Effective Time, the Company Board clause (or any committee thereof2) may effect a Company Board Recommendation Change if, (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, unless (A) the Company has first notified shall have provided prior written notice to Parent in writing and Merger Sub at least three two (32) Business Days in advance that it intends (the “Notice Period”), of its intention to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (or terminate this Agreement to enter into a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update definitive agreement with respect to such Superior Proposal, as the case may be, which notice shall specify the material terms and conditions of any such Superior Proposal, if applicable, and shall have contemporaneously provided a copy of the determination relevant proposed transaction agreements with the party making such Superior Proposal and other material documents to so deliver the extent they set forth material terms and conditions of any such noticeSuperior Proposal, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); and (B) if requested by Parentprior to effecting such a Recommendation Change or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the Company shall, and shall have made cause its Representatives available financial and legal advisors to, during the Notice Period, negotiate with Parent and Merger Sub in good faith (to discuss with Parent’s Representatives any proposed modifications the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) as would permit the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure not to effect a Recommendation Change or to conclude that such Acquisition Proposal has ceased to constitute a Superior Proposal, as the case may be. In the event that during the Notice Period any revisions are made to the Superior Proposal and the Company Board Recommendation Change would still reasonably be expected to be inconsistent with in its fiduciary duties to the Company Stockholders under applicable Law; provided good faith judgment determines such revisions are material (it being agreed that any change in the event of any purchase price in such Superior Proposal shall be deemed a material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposalrevision), the Company shall be required to deliver a new Recommendation Change Notice written notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)5.6(a) with respect to such new Recommendation Change written notice, except that the Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Noticebe reduced to 36 hours.

Company Board Recommendation. (a) Neither Subject to Section 6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall withhold, withdraw, amend, (i)(A) withdraw (or modify or qualify in a manner adverse to Parent or Acquisition Merger Sub), or publicly propose to withhold, withdraw, amend, withdraw (or modify or qualify in a manner adverse to Parent or Acquisition Merger Sub), the Company Board Recommendation or (B) approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Change Recommendation”); (ii) fail to publicly reaffirm the Company Board Recommendation Change“within ten (10) Business Days after Parent so requests in writing, provided that, unless a Takeover Proposal shall have been publicly disclosed, Parent may only make such request once every thirty (30) days; (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to any Takeover Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement); providedor (iv) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender or exchange offer by a third party, however, that other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or any a committee thereof) to the stockholders of the Company Stockholders pursuant to Rule 14d-9(f) of promulgated under the Exchange Act, Act (or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement at any time prior to the Effective Time, ) (it being understood that the Company Board (or any a committee thereof) may effect refrain from taking a Company Board Recommendation Change if, (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures position with respect thereto shall not constitute to a Company Board Recommendation Change for purposes Takeover Proposal until the close of this Agreement); (B) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time business on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) tenth Business Day after the day commencement of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (a tender or any committee thereof) shall have determined exchange offer in good faith (after consultation connection with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect such Takeover Proposal without such action being considered a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements violation of this Section 6.3 (including Section 6.3(a6.1)) with respect to such new Recommendation Change Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Notice.

Company Board Recommendation. (a) Neither the Company Board nor any committee thereof shall (i) withhold, withdraw, amend, qualify or modify or qualify in a manner adverse to Parent or Acquisition SubParent, or publicly propose to withhold, withdraw, amend, qualify or modify or qualify in Table of Contents a manner adverse to Parent or Acquisition SubParent, the Company Board Recommendation Recommendation, (a “ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, an Acquisition Proposal, (iii) fail to include the Company Board Recommendation Change“)in the Proxy Statement, (iv) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company Stockholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by the Company Stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer; provided, however, provided that a customary “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f14d–9(f) of under the Exchange Act, Act or any substantially similar communication, a statement that the Company Board has received and is currently evaluating such Acquisition Proposal shall not be prohibited or be deemed to be a Company Board Recommendation Change. Notwithstanding ) within ten (10) Business Days after the foregoing commencement thereof or anything to the contrary set forth in this Agreement at any time such fewer number of days as remain prior to the Effective TimeCompany Stockholder Meeting, or (v) fail to publicly reaffirm the Company Board Recommendation following any Acquisition Proposal having been publicly made, proposed or communicated (or and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing; provided that Parent may not make such request more than one time with respect to any committee thereof) may effect a Acquisition Proposal unless there shall have been an additional public announcement by the Company Board Recommendation Change ifwith respect to such Acquisition Proposal (each of clauses (i), (iii), (iii), (iv) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting v), a “Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement”); (B) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Notice.

Company Board Recommendation. (a) Neither the Company Board nor any committee thereof shall withhold, withdraw, amend, amend or modify or qualify in a manner adverse to Parent or Acquisition SubParent, or publicly propose to withhold, withdraw, amend, amend or modify or qualify in a manner adverse to Parent or Acquisition SubParent, the Company Board Recommendation (a “Company Board Recommendation Change“”); provided, however, that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not in and of itself be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement Agreement, at any time prior to the Effective TimeOffer Closing, the Company Board (or any committee thereof) may effect a Company Board Recommendation Change if, (i) (x) the Company Board (or any committee thereof) receives an Acquisition Proposal not resulting from any breach of Section 6.2 that it determines in good faith, after consultation with its independent financial advisor and outside legal counsel, constitutes a Superior Proposal and the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law or (y) an Intervening Event occurs and as a result thereof the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“”) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement) and, if applicable, has provided Parent a summary of any Superior Proposal and terms and conditions thereof (and a copy of any definitive agreements related thereto); (Biii) if requested by Parent, the Company shall have discussed and negotiated in good faith, and shall have made its Representatives available to discuss and negotiate in good faith, with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives so that the failure to negotiate in good faith make such Company Board Recommendation Change would no longer reasonably be expected to be inconsistent with Parentthe Company Board’s Representatives fiduciary duties (and, if Parent desires applicable, such Superior Proposal ceases to negotiateconstitute a Superior Proposal) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Eastern Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending three (3) Business Days later at 5:00 p.m. Central Eastern Time on the third (3rdit being understood and agreed that any amendment to any material term or condition of any Superior Proposal shall require a new Recommendation Change Notice and a new three (3) Business Day after period); and (iv) no earlier than the day end of delivery by the Company to Parent three Business Day period following receipt of the Recommendation Change Notice (the “Match Period“); and (C) Notice, the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation ChangeLaw and, including any material revisions to an Acquisition Proposalif applicable, the Company shall be required Board (or any committee thereof) determines in good faith, after consultation with its independent financial advisor and outside legal counsel, after considering the terms of any proposed amendment or modification to deliver a new this Agreement, the Acquisition Proposal that is subject of the Recommendation Change Notice continues to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice and the reasons therefor, and constitute a new Match Period shall commence upon the delivery of such new Recommendation Change NoticeSuperior Proposal.

Company Board Recommendation. (a) Neither Subject to the Company Board nor any committee thereof shall withholdprovisions described below, withdrawTasty Baking’s board of directors agreed to recommend that the holders of the Shares accept the Offer, amendtender their Shares to Purchaser pursuant to the Offer and, modify or qualify in a manner adverse to Parent or Acquisition Subthe extent applicable, or publicly propose approve and adopt the Merger Agreement and the Merger. This is referred to withhold, withdraw, amend, modify or qualify in a manner adverse to Parent or Acquisition Sub, as the Company Board Recommendation (a “Company Board Recommendation.” The Merger Agreement provides that Tasty Baking’s board of directors will not effect a Change of Recommendation Change“); provided, however, that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be enter into a Company Board Recommendation ChangeAcquisition Agreement except as described below. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement at any time prior to the Effective Time, the Company Board (or any committee thereof) Xxxxx Xxxxxx’s board of directors may effect a Change of Recommendation or enter into a Company Board Acquisition Agreement: • at least four business days prior to a Change of Recommendation or entering into a Company Acquisition Agreement, Tasty Baking has provided Parent a written notice of its intention to take such action with respect to a Superior Proposal, which we refer to as a “notice of change of recommendation.” The notice of change of recommendation must state that Tasty Baking received a Takeover Proposal and that Tasty Baking intends to declare a Superior Proposal and make a Change ifof Recommendation and/or enter into a Company Acquisition Agreement. The notice of change of recommendation must also include a copy of the proposed agreement containing the Superior Proposal and identifying the person making the Superior Proposal; and • during the four business day period after Xxxxxx’s receipt of the notice of change of recommendation, (i) the Company Board (or any committee thereof) determines Tasty Baking has, and has caused its representatives to have, negotiated with Parent in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (B) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to allow Parent the opportunity to make adjustments in the terms and conditions of this the Merger Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, so that the failure to effect a Company Board Recommendation Change would still reasonably be expected Takeover Proposal ceases to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided a Superior Proposal. The Merger Agreement provides that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, a Takeover Proposal that the Company shall board of directors of Tasty Baking has determined to be required a Superior Proposal require Tasty Baking to deliver a new Recommendation Change Notice to Parent and to comply with the requirements notice of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice and the reasons therefor, change of recommendation and a new Match Period shall commence upon four business day period as described above will begin. For purposes of this Offer to Purchase and the delivery of such new Recommendation Change Notice.Merger Agreement:

Company Board Recommendation. (a) Neither Subject to Section 6.1(b), the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents. During the Pre-Closing Period, neither the Company Board nor any committee thereof shall withhold, withdraw, amend, (i)(A) withdraw (or modify or qualify in a manner adverse to Parent or Acquisition Merger Sub), or publicly propose to withhold, withdraw, amend, withdraw (or modify or qualify in a manner adverse to Parent or Acquisition Merger Sub), the Company Board Recommendation or (B) approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Takeover Proposal (any action described in this clause (i) being referred to as a “Company Board Recommendation Change“Adverse Change Recommendation”); provided(ii) fail to publicly reaffirm its recommendation of this Agreement within ten Business Days after Parent so requests in writing, howeverprovided that, unless a Takeover Proposal will have been publicly disclosed, Parent may only make such request once every thirty (30) days; (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow the Company to execute or enter into any Contract with respect to any Takeover Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the Transactions (other than an Acceptable Confidentiality Agreement) or (iv) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender or exchange offer by a third party, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board (or any a committee thereof) to the stockholders of the Company Stockholders pursuant to Rule 14d-9(f) of promulgated under the Exchange Act, Act (or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement at any time prior to the Effective Time, ) (it being understood that the Company Board (or any a committee thereof) may effect refrain from taking a Company Board Recommendation Change if, (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures position with respect thereto shall not constitute to a Company Board Recommendation Change for purposes Takeover Proposal until the close of this Agreement); (B) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time business on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) tenth Business Day after the day commencement of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (a tender or any committee thereof) shall have determined exchange offer in good faith (after consultation connection with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect such Takeover Proposal without such action being considered a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements violation of this Section 6.3 (including Section 6.3(a6.1)) with respect to such new Recommendation Change Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Notice.

Company Board Recommendation. (a) Neither the Company Board nor any committee thereof shall withhold, withdraw, amendqualify, amend or modify or qualify in a manner adverse to Parent or Acquisition Subin any material respect, or publicly propose to AGREEMENT AND PLAN OF MERGER withhold, withdraw, amendqualify, amend or modify or qualify in a manner adverse to Parent or Acquisition Subin any material respect, the Company Board Recommendation (a “Company Board Recommendation Change“”); provided, however, that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement Agreement, at any time prior to the Effective Acceptance Time, the Company Board (or any committee thereof) may effect a Company Board Recommendation Change if, in response to events, facts or circumstances other than an Acquisition Proposal or Superior Proposal, (i) the Company Board (or any committee thereof) determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change would reasonably be expected to be inconsistent with result in a breach of its fiduciary duties to the Company Stockholders under applicable Law; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“”) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not not, in and of itself, constitute a Company Board Recommendation Change for purposes of this Agreement); (Biii) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Pacific Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending four (4) Business Days later at 5:00 p.m. Central Pacific Time on the third (3rdit being understood that any amendment or update of such Recommendation Change Notice shall be considered a new Recommendation Change Notice and shall start a new four (4) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“period); and (Civ) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still continue to reasonably be expected to be inconsistent with result in a breach of its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change NoticeStockholders.

Company Board Recommendation. (a) Neither Subject to the provisions described below, XxXxxxx’s board of directors agreed to recommend that the holders of the Shares accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if necessary under applicable law, adopt the Merger Agreement in accordance with the applicable provisions of DGCL. This is referred to as the “Company Board nor any committee thereof shall withhold, withdraw, amend, modify or qualify in a manner adverse Recommendation.” XxXxxxx’s board of directors also agreed to Parent or Acquisition Sub, or publicly propose to withhold, withdraw, amend, modify or qualify in a manner adverse to Parent or Acquisition Sub, include the Company Board Recommendation (a “in the Schedule 14D-9 and to permit Xxxxx to include the Company Board Recommendation Change“); provided, however, in this Offer to Purchase and related Offer documents. The Merger Agreement provides that XxXxxxx’s board of directors will not effect a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) Change of the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Recommendation Changeexcept as described below. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement at any time prior to the Effective Time, the Company Board (or any committee thereof) ImClone’s board of directors may effect a Company Change of Board Recommendation Change ifwith respect to a Superior Proposal, or otherwise terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal: • if XxXxxxx has received an Acquisition Proposal that the ImClone board of directors concludes, in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal (i) after giving effect to any modifications to the Company Board (or any committee thereof) determines Merger Agreement offered by Parent); • if ImClone has not breached the no-solicitation provisions of the Merger Agreement; • if at least three business days prior to such action, ImClone has provided Lilly a written notice of its intention to take such action, which we refer to as a “notice of change in recommendation.” The notice of change in recommendation must specify the material terms and conditions of the Superior Proposal, including a copy of the Superior Proposal and identifying the person making the Superior Proposal; • if during the three business day period after Xxxxx’x receipt of the notice of change in recommendation, ImClone has negotiated with Lilly in good faith (if Lilly desires to negotiate) to make such adjustments in the terms and conditions of the Merger Agreement so that such Acquisition Proposal ceases to be a Superior Proposal; and • if ImClone desires to terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal, ImClone has paid the Termination Fee (as defined below) substantially concurrently with the termination. The Merger Agreement provides that any material revisions to a Superior Proposal require ImClone to deliver a new notice of change in recommendation and a new three business day period described above. In addition, XxXxxxx’s board of directors may effect a Change of Board Recommendation other than in connection with a Superior Proposal but only in response to an Intervening Event (as defined below) if: • ImClone’s board of directors determines in good faith, after consultation with its outside legal counsel) , that the failure to effect a Company Change of Board Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders ImClone’s shareholders under applicable Lawlaw; and (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing • at least three (3) Business Days in advance that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update business days prior to such Change of Board Recommendation, ImClone provided Lilly with a notice of change in recommendation specifying the facts, circumstances and other conditions giving rise to such proposed Change of Board Recommendation; and 42 Table of Contents • during the determination to so deliver such noticethree business day period following Xxxxx’x receipt of the notice of change in recommendation, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (B) if requested by Parent, the Company shall have made its Representatives available to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate ImClone has negotiated in good faith with Parent’s Representatives (if Parent Lilly desires to negotiate) any proposed modifications regarding adjustments to the terms and conditions of the Merger Agreement so that a Change in Board Recommendation is not necessary. For purposes of this Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company Offer to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice Purchase and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Notice.Merger Agreement:

Company Board Recommendation. (a) Neither Except as expressly provided in this Section 6.3, neither the Company Board nor any committee thereof shall (i) withhold, withdraw, amend, qualify or modify or qualify in a any manner adverse to Parent or Acquisition Sub, or publicly propose to withhold, withdraw, amend, qualify or modify or qualify in a any manner adverse to Parent or Acquisition Sub, the Company Board Recommendation, (ii) adopt, approve or recommend or publicly propose to adopt, approve or recommend an Acquisition Proposal, (iii) (A) fail to publicly recommend against any Acquisition Proposal within ten (10) Business Days after Parent so requests in writing or (B) fail to publicly reaffirm the Company Board Recommendation within five (5) Business Days after Parent so reasonably requests in writing; provided, that Parent may only make two (2) such requests in any given fifteen (15) Business Day period; (iv) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such Acquisition Proposal, (v) fail to include the Company Board Recommendation in the Schedule 14D-9 or the Proxy Statement, if applicable, or (vi) enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 6.2(c)) (any action described in clauses (i) through (vi), a “Company Board Recommendation Change“”); provided, however, however that a “stop, look and listen” communication by the Company Board (or any committee thereof) to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communicationcommunications, shall not be deemed to be a Company Board Recommendation Change. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement Agreement, at any time prior to the Effective Time, the Company Board (or any committee thereof) may effect a Company Board Recommendation Change if, at any time prior to the receipt of the Stockholder Approval, (i) the Company Board (or any authorized committee thereof) determines shall have determined in good faith (faith, after consultation with its outside legal counsel) , that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties to the Company Stockholders under applicable Law; and Laws (ii) prior to effecting a Company Board Recommendation Change, (A) the Company has first notified Parent in writing (a “Recommendation Change Notice”) at least three five (35) Business Days in advance (the “Notice Period”), that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) and, in the case of any Acquisition Proposal, the identity of the Person or group of Persons making the Superior Proposal, and the material terms thereof (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute a Company Board Recommendation Change for purposes of this Agreement); (Biii) if requested by Parent, the Company shall have made and shall direct its Representatives available to discuss to, during the Notice Period, negotiate with Parent and Parent’s Representatives any proposed modifications in good faith (to the extent Parent desires to negotiate) to make adjustments in the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“)Agreement; and (Civ) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its the directors’ fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change NoticeLaws.

Company Board Recommendation. (a) Neither Subject to the provisions described below, AST’s board of directors agreed to recommend that AST’s shareholders accept the Offer, tender their Shares pursuant to the Offer and, if required by applicable law, adopt the Merger Agreement. This is referred to as the “Company Board Recommendation.” The Merger Agreement provides that, except as described below, neither AST’s board of directors nor any committee thereof shall (i) withhold, withdrawwithdraw (or not continue to make), amendchange, qualify or modify or qualify in a manner adverse to Parent or Acquisition Subthe Purchaser, or propose publicly propose to withhold, withdrawwithdraw (or not continue to make), amendchange, qualify or modify or qualify in a manner adverse to Parent or Acquisition Subthe Purchaser, the Company Board Recommendation or any approval or recommendation by any such committee regarding the Merger Agreement, the Offer and the Merger, or approve or recommend, or propose publicly to approve or recommend any Takeover Proposal, or resolve or agree to take any such action, (ii) fail to publicly recommend against any Takeover Proposal or fail to publicly reaffirm the Company Recommendation or any approval or recommendation by any such committee regarding the Merger Agreement, the Offer and the Merger within two business days after Parent so requests, (iii) fail to include the Company Recommendation in the documents filed with the Schedule TO and the documents included therein (together with any supplements or amendments thereto) or the proxy statement sent to AST’s shareholders in connection with the shareholder meeting to approve the Merger, (iv) approve or recommend, or propose publicly to approve, recommend or permit AST or any of its affiliates to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or which is intended to or is reasonably likely to lead to, any Takeover Proposal (other than pursuant to a confidentiality agreement with standstill provisions identical in all substantive respects to, and which otherwise contains terms Table of Contents that are no less favorable to AST than, those contained in its confidentiality agreement with Parent), or (v) take any other action or make any other public statement that is inconsistent with the Company Recommendation (any such action or resolution or agreement to take such action in clauses (i) - (v) above being referred to herein as an “Adverse Recommendation Change”). Before the first to occur of the Purchaser accepting for payment Shares tendered in the Offer and the meeting of AST’s shareholders to approve the Merger, AST’s board of directors may effect an Adverse Recommendation Change in response to a Superior Proposal if: • AST has received a Takeover Proposal with respect to which the AST board of directors has determined in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to take such action would be inconsistent with its fiduciary duties to the shareholders of AST under applicable law; • the Superior Proposal is not attributable to the breach of the no solicitation provisions of the Merger Agreement, including those described above; • at least three business days prior to the Adverse Recommendation Change, AST has provided Parent a written notice of its intention to (i) effect an Adverse Recommendation Change or (ii) terminate the Merger Agreement in order to enter into a definitive agreement that constitutes a Superior Proposal, which we refer to as a “Company Board notice of an adverse recommendation change.” The notice of an adverse recommendation change must identify the persons making such Superior Proposal and contain a description in reasonable detail of the facts and circumstances giving rise to the proposed Adverse Recommendation Change“)Change and of the material terms and conditions of the Superior Proposal, including a copy of the definitive acquisition agreement relating to such Superior Proposal and any information concerning AST or its subsidiaries provided to the third party making such Superior Proposal which was not previously provided to Parent; provided• during the three business day period after Xxxxxx’s receipt of the notice of an adverse recommendation change, howeverAST has, that a “stopand has caused its representatives to, look if requested by Xxxxxx, negotiated in good faith with Parent and listen” communication its representatives regarding any such revisions to the terms of the transactions contemplated by the Company Board Merger Agreement; and • during the three business day period after Xxxxxx’s receipt of the notice of an adverse recommendation change, Parent has not made a proposal that, in the reasonable good faith judgment of AST’s board of directors (after consultation with its outside legal counsel and financial advisor), causes the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal or any committee thereof) that otherwise permits AST’s board of directors to proceed with the Company Stockholders pursuant to Rule 14d-9(f) of Recommendation and not proceed with the Exchange Act, or any substantially similar communication, shall not be deemed to be a Company Board Adverse Recommendation Change. Notwithstanding the foregoing or anything The Merger Agreement provides that any material changes to the contrary set forth in this Agreement at facts and circumstances giving rise to a proposed Adverse Recommendation Change or the financial terms or any time material change to other material terms of such Superior Proposal occurring prior to the Effective Time, the Company Board (or any committee thereof) may effect a Company Board AST’s effecting an Adverse Recommendation Change ifshall require AST to provide to Parent a new notice of an adverse recommendation change and a new notice period and to comply with the requirements of the Merger Agreement (including those described above) with respect to each such new written notice. In all circumstances in which AST’s board of directors is permitted to effect an Adverse Recommendation Change, it may also terminate the Merger Agreement to enter into a definitive acquisition agreement that constitutes a Superior Proposal in accordance with the provisions applicable to an Adverse Recommendation Change, provided that AST has paid the Termination Fee (i) as defined below). Except to the Company Board (or any committee thereof) extent the board of directors of AST determines in good faith (after consultation with outside legal counsel) that the failure to effect a Company Board Recommendation Change take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties to the Company Stockholders shareholders of AST under applicable Law; and (ii) prior to effecting a Company Board Recommendation Changelaw, (A) the Company has first notified Parent in writing at least three (3) Business Days in advance AST agreed that it intends to effect a Company Board Recommendation Change, describing in reasonable detail the reasons for such Company Board Recommendation Change (a “Recommendation Change Notice“) (it being agreed that the Recommendation Change Notice and any amendment or update to such notice and the determination to so deliver such notice, or update or amend public disclosures with respect thereto shall not constitute terminate, waive, amend or modify any Table of Contents provision of any standstill, confidentiality or non-solicitation agreement to which it or any of its subsidiaries is a Company Board Recommendation Change for party and that relates to a Takeover Proposal, and AST agreed to take all necessary actions and use its reasonable best efforts to enforce, to the fullest extent permitted by applicable law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches and to enforce specifically the terms and provisions thereof. For purposes of this Agreement); (B) if requested by Parent, the Company shall have made its Representatives available Offer to discuss with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement and shall cause its Representatives to negotiate in good faith with Parent’s Representatives (if Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement during the period beginning at 5:00 p.m. Central Time on the day of delivery by the Company to Parent of such Recommendation Change Notice and ending at 5:00 p.m. Central Time on the third (3rd) Business Day after the day of delivery by the Company to Parent of the Recommendation Change Notice (the “Match Period“); and (C) the Company Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure to effect a Company Board Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that in the event of any material change during the Match Period to any of the facts that is the basis of the proposed Company Board Recommendation Change, including any material revisions to an Acquisition Proposal, the Company shall be required to deliver a new Recommendation Change Notice to Parent and to comply with the requirements of this Section 6.3 (including Section 6.3(a)) with respect to such new Recommendation Change Notice Purchase and the reasons therefor, and a new Match Period shall commence upon the delivery of such new Recommendation Change Notice.Merger Agreement: