Section 6.03 No Solicitation. <omitted> (e) Recommendation. <omitted> (ii) Notwithstanding anything to the contrary set forth in this Agreement, prior to the Offer Closing, the Company Board,   

  

(A) in response to a Takeover Proposal received by the Company after the date of this Agreement that did not result from or involve a breach of Section 6.03(b), (x) may make a Company Adverse Recommendation Change or (y) may cause the Company to terminate this Agreement in accordance with and pursuant to Section 8.04(a) in order to cause the Company to enter into a definitive agreement with respect to a Takeover Proposal, if and only if the Company Board has determined in good faith, after consultation with its financial advisor and outside legal counsel and after taking into account any revisions to the terms of this Agreement that may be offered in writing by Parent in accordance with this Section 6.03(e), (I) that such Takeover Proposal constitutes a Superior Proposal and (II) that the failure to make a Company Adverse Recommendation Change or cause the Company to validly terminate this Agreement in accordance with Section 8.04(a) would reasonably be expected to conflict with the Company Board’s fiduciary duties under applicable Law, provided, that prior to making such Company Adverse Recommendation Change or terminating this Agreement in accordance with Section 8.04(a), (i) the Company shall have given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, including its reasonable basis for such decision and the material terms and conditions of, and the identity of the Person making any such Superior Proposal and contemporaneously provided to Parent a copy of the Superior Proposal, a copy of any proposed Company Acquisition Agreement and all related documentation, including with respect to financing arrangements, (ii) during such four (4) Business Day period following the date on which such notice is received, the Company shall and shall cause its Representatives to, if requested by Parent, negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as Parent may propose, (iii) upon the end of such notice period (or such subsequent notice period as   52


 

contemplated by clause (iv)), the Company Board shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent and capable of being accepted by the Company, and shall have determined, after consultation with its financial advisors and outside legal counsel, that the Superior Proposal would nevertheless continue to constitute a Superior Proposal, and (iv) in the event of any change to any of the financial terms or any other material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above of this proviso and a new notice period under clause (i) of this proviso shall commence (provided, that the notice period thereunder shall only be three (3) Business Days during which time the Company shall be required to comply with the requirements of this Section 6.03(e) anew with respect to such additional notice, including clauses (i) through (iii) above of this proviso; or   

  

(B) in response to a Company Intervening Event, may effect a Company Adverse Recommendation Change in response to a Company Intervening Event if the Company determines in good faith (after consultation with its outside legal counsel) that the failure to do so would reasonably be expected to conflict with the Company Board’s fiduciary duties under applicable Law, provided, that prior to making such Company Adverse Recommendation Change, (i) the Company shall have given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, including specifying the Company Intervening Event in reasonable detail, (ii) during such four (4) Business Day period following the date on which such notice is received, the Company shall and shall cause its Representatives to, if requested by Parent, negotiate with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as Parent may propose, (iii) upon the end of such notice period the Company Board shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent and capable of being accepted by the Company, and shall have determined, after consultation with its financial advisors and outside legal counsel, that the failure to make a Company Board Recommendation Change in response to such Company Intervening Event still would reasonably be expected to conflict with the Company Board’s fiduciary duties under applicable Law, and (iv) in the event of any material   53


 

change in the events surrounding the Company Intervening Event, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above of this proviso and a new notice period under clause (i) of this proviso shall commence (provided, that the notice period thereunder shall only be three (3) Business Days during which time the Company shall be required to comply with the requirements of this Section 6.03(e) anew with respect to such additional notice, including clauses (i) through (iii) above of this proviso. (Pages 57-59)

Question: Fiduciary exception to COR covenant
Category: Deal Protection and Related Provisions
Answer: Yes