(iii)                Notwithstanding anything to the contrary set forth in this Agreement, prior to the Offer Acceptance Time, the Company Board may:   (x) effect a Change of Recommendation if: (A)  a bona fide written Acquisition Proposal that did not result from a violation of this Section 6.02 is received by the Company and has not been withdrawn, and  the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, after consultation with its financial advisor, that such Acquisition Proposal constitutes a Superior Proposal; or (B) the Company Board determines in good faith that an Intervening Event has occurred and, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would be inconsistent with


the directors’ fiduciary duties under applicable Law, and/or   (y) cause the Company to terminate this Agreement pursuant to Section 8.03(b);   

-63-   

  provided, however, that no such actions described in either of the foregoing clauses (x) and (y) may be taken unless and until: (1) the Company has given Parent written notice at least four Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action, and a reasonably detailed description of the Superior Proposal or other cause for the Change of Recommendation, as applicable (including, with respect to a Superior Proposal, the name of such Person or Persons making such Superior Proposal and correct and complete copies of the definitive agreement for the Superior Proposal and the material ancillary agreements contemplated thereby); (2) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent, to the extent that Parent has notified the Company during the Notice Period that it wishes to do so and has made its Representatives available during such Notice Period for such purposes, to allow Parent to make during such Notice Period proposals to revise the terms and conditions of this Agreement so that, in the case of a Change of Recommendation contemplated in connection with an Acquisition Proposal, such Acquisition Proposal that constituted a Superior Proposal would no longer be a Superior Proposal, or, in the case of a Change of Recommendation in connection with an Intervening Event, failure to effect such Change of Recommendation would not be inconsistent with the directors’ fiduciary duties under applicable Law; and (3) at or after the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement offered by Parent in writing in response to such notice contemplated by clause (1) of this Section 6.02(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would continue to be inconsistent with the directors’ fiduciary duties under applicable Law and, if applicable, such Superior Proposal continues to constitute a Superior Proposal (it being understood that any revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 6.02(c) and this Section 6.02(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the (Pages 32-33)

(iii)                Notwithstanding anything to the contrary set forth in this Agreement, prior to the Offer Acceptance Time, the Company Board may:   <omitted>  (y) cause the Company to terminate this Agreement pursuant to Section 8.03(b);   

-63-   

  provided, however, that no such actions described in either of the foregoing clauses (x) and (y) may be taken unless and until: (1) the Company has given Parent written notice at least four Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action, and a reasonably detailed description of the Superior Proposal or other cause for the Change of Recommendation, as applicable (including, with respect to a Superior Proposal, the name of such Person or Persons making such Superior Proposal and correct and complete copies of the definitive agreement for the Superior Proposal and the material ancillary agreements contemplated thereby); (2) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent, to the extent that Parent has notified the Company during the Notice Period that it wishes to do so and has made its Representatives available during such Notice Period for such purposes, to allow Parent to make during such Notice Period proposals to revise the terms and conditions of this Agreement so that, in the case of a Change of Recommendation contemplated in connection with an Acquisition Proposal, such Acquisition Proposal that constituted a Superior Proposal would no longer be a Superior Proposal, or, in the case of a Change of Recommendation in connection with an Intervening Event, failure to effect such Change of Recommendation would not be inconsistent with the directors’ fiduciary duties under applicable Law; and (3) at or after the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement offered by Parent in writing in response to such notice contemplated by clause (1) of this Section 6.02(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would continue to be inconsistent with the directors’ fiduciary duties under applicable Law and, if applicable, such Superior Proposal continues to constitute a Superior Proposal (it being understood that any revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 6.02(c) and this Section 6.02(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, the Notice Period shall be reduced to three Business Days). (Pages 32-33)

(iii)                Notwithstanding anything to the contrary set forth in this Agreement, prior to the Offer Acceptance Time, the Company Board may:   (x) effect a Change of Recommendation if: (A)  a bona fide written Acquisition Proposal that did not result from a violation of this Section 6.02 is received by the Company and has not been withdrawn, and  the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law and, after consultation with its financial advisor, that such Acquisition Proposal constitutes a Superior Proposal; or (B) the Company Board determines in good faith that an Intervening Event has occurred and, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would be inconsistent with


the directors’ fiduciary duties under applicable Law, and/or   (y) cause the Company to terminate this Agreement pursuant to Section 8.03(b);   

-63-   

  provided, however, that no such actions described in either of the foregoing clauses (x) and (y) may be taken unless and until: (1) the Company has given Parent written notice at least four Business Days in advance (the “Notice Period”), which notice shall set forth in writing that the Company Board intends to consider whether to take such action, and a reasonably detailed description of the Superior Proposal or other cause for the Change of Recommendation, as applicable (including, with respect to a Superior Proposal, the name of such Person or Persons making such Superior Proposal and correct and complete copies of the definitive agreement for the Superior Proposal and the material ancillary agreements contemplated thereby); (2) during the Notice Period, to the extent requested by Parent, the Company shall, and shall cause its Representatives to, negotiate in good faith with Parent, to the extent that Parent has notified the Company during the Notice Period that it wishes to do so and has made its Representatives available during such Notice Period for such purposes, to allow Parent to make during such Notice Period proposals to revise the terms and conditions of this Agreement so that, in the case of a Change of Recommendation contemplated in connection with an Acquisition Proposal, such Acquisition Proposal that constituted a Superior Proposal would no longer be a Superior Proposal, or, in the case of a Change of Recommendation in connection with an Intervening Event, failure to effect such Change of Recommendation would not be inconsistent with the directors’ fiduciary duties under applicable Law; and (3) at or after the end of the Notice Period, the Company Board shall have taken into account any revisions to this Agreement offered by Parent in writing in response to such notice contemplated by clause (1) of this Section 6.02(d)(iii) prior to the end of the Notice Period, and shall have thereafter determined in good faith, after consultation with outside legal counsel, that a failure to effect a Change of Recommendation would continue to be inconsistent with the directors’ fiduciary duties under applicable Law and, if applicable, such Superior Proposal continues to constitute a Superior Proposal (it being understood that any revisions to any Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of Section 6.02(c) and this Section 6.02(d)(iii), including for purposes of the Notice Period, except that subsequent to the initial Notice Period, theNotice Period shall be reduced to three Business Days). (Pages 32-33)

Question: Agreement provides for matching rights in connection with FTR
Category: Deal Protection and Related Provisions
Answer: Continuous matching right