“Change in Circumstance” means any material event or development or material change in circumstances with respect to the Company occurring or arising after the Agreement Date that was (a) not known or reasonably foreseeable to the Company Board as of the Agreement Date and (b) does not relate to (i) any Acquisition Proposal, (ii) any events, changes or circumstances that are the result of factors generally affecting the industries in which the Company operates, the geographic markets in which they operate or where their products or services are sold that have not had or would not reasonably be expected to have a disproportionate effect on the Company, (iii) any events, changes or circumstances relating to Parent, Purchaser or any of their Affiliates or (iv) changes in the market price of the Company Common Stock or the fact that the Company meets or exceeds any internal or analysts’ expectations or projections (provided that, with respect to this clause (iv), the underlying causes of any such events, changes or circumstances may be considered in determining whether a Change in Circumstance occurred to the extent not otherwise excluded by another exception in this definition). <omitted>

Section 7.1 Company Board Recommendation. <omitted> (b) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to accepting for payment such number of Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition (the “Offer Acceptance Time”): 

(i) if the Company has received a bona fide written Acquisition Proposal (which Acquisition Proposal was made after the date of this Agreement and did not arise out of a material breach of Section 6.3(a)) from any Person that has not been withdrawn and constitutes a Superior Offer, (x) the Company Board may make a Company Adverse Change Recommendation, or (y) the Company may terminate this Agreement to enter into a Specified Agreement with respect to such Superior Offer, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would reasonably be expected to constitute a breach of the fiduciary duties of the Company Board under applicable Law; (B) the Company shall have given Parent prior written notice of its intention to make a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 9.1(d)(i) at least four (4) Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”) (which notice shall not constitute a Company Adverse Change Recommendation); and (C)(i) the Company shall have provided to Parent a complete copy of any written proposal, indication of interest, offer or other written material, including any proposed Specified Agreement, with respect to the Superior Offer in accordance with Section 6.3(d), (ii) the Company shall have given Parent the four (4) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Acquisition Proposal would cease to constitute a Superior Offer, and, to the extent requested by Parent, shall have negotiated in good faith with Parent and its Representatives with respect to such proposed revisions or other proposal, if any, and (iii) at the end of such four (4) Business Day period, the Company Board determines in good faith that such Acquisition Proposal continues to constitute a Superior Offer and makes the determination under Section 7.1(b)(i)(A) (after taking into account the amendments to this Agreement and the Transactions proposed by Parent, if any). With respect to Section 7.1(b)(i)(C), if there are any material amendments, revisions or changes to the terms of any such Superior Offer, the Company shall notify Parent of each such material amendment, revision or change and the applicable four (4) Business Day period shall be extended until at least two (2) Business Days after the time that Parent receives notification from the Company of each such amendment, revision or change to the terms of such Acquisition Proposal; and 

(ii) other than in connection with an Acquisition Proposal, the Company Board may make a Company Adverse Change Recommendation in response to a Change in Circumstance, if and only if: (A) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to do so would reasonably be expected to constitute a breach of the fiduciary duties of the Company   -41-


Board under applicable Law; (B) the Company shall have given Parent a Determination Notice at least five (5) Business Days prior to making any such Company Adverse Change Recommendation; and (C)(x) the Company shall have specified the Change in Circumstance in reasonable detail, (y) the Company shall have given Parent five (5) Business Days after the Determination Notice to propose revisions to the terms of this Agreement or make another proposal so that such Change in Circumstance would no longer necessitate a Company Adverse Change Recommendation, and, to the extent requested by Parent, shall have negotiated in good faith with Parent with respect to such proposed revisions or other proposal, if any, and (z) at the end of such five (5) Business Day period, the Company Board makes the determination under Section 7.1(b)(ii)(A) (after taking into account the amendments proposed to this Agreement and the Transactions by Parent, if any). With respect to Section 7.1(b)(ii)(C), if there are any material changes to the facts and circumstances relating to such Change in Circumstance, the Company shall notify Parent of each such material change and the applicable five (5) Business Day period shall be extended until at least two (2) Business Days after the time that Parent receives notification from the Company of each such material change.  (Pages 45-46)

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