Section 5.4         Non-Solicitation; Change in Recommendation. <omitted> (d)        Anything in this Section 5.4 to the contrary notwithstanding, prior to the time the Company Required Vote is obtained, if the Company Board receives a bona fide written Acquisition Proposal made after the date of this Agreement that has not been withdrawn and that has not resulted from a Willful Breach of this Section 5.4 and the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and that the failure to take such action in response to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, subject to compliance with this Section 5.4(d), make a Company Adverse Recommendation Change; provided, that (A) the Company shall first notify Parent and Merger Sub in writing at least four Business Days before taking such action that the Company intends to take such action, which notice shall include an unredacted copy of such proposal and a copy of any financing commitments (in the form provided to the Company) relating thereto (and, to the extent not in writing, the material terms and conditions thereof and the identity of the Person(s) making any such Acquisition Proposal), (B) the Company and its Representatives shall negotiate in good faith with Parent, Merger Sub and their Representatives during such four Business Day notice period, to the extent Parent and Merger Sub wish to negotiate and make themselves reasonably available to negotiate, to enable Parent and Merger Sub to jointly propose revisions to the terms of this Agreement, (C) upon the end of such notice period, the Company Board shall have considered in good faith any revisions to the terms of this Agreement committed to in a binding written proposal by Parent and Merger Sub, and shall have determined in good faith, after consultation with its financial advisors and outside legal counsel, that such Superior Proposal would nevertheless continue to constitute a Superior Proposal if such revisions proposed by Parent and Merger Sub were to be given effect and that the failure to take such action in response to such Superior Proposal would continue to be inconsistent with its fiduciary duties under applicable Law and (D) in the event of any change, from time to time, to any of the financial terms or any other material terms of such Superior Proposal (including as a result of any proposed amendment to the terms of this Agreement in response to such Superior Proposal), the Company shall, in each case, have delivered to Parent and Merger Sub an additional notice consistent with that described in clause (A) of this proviso and a new notice period under clause (A) of this proviso shall commence each time, except each such notice period shall be two Business Days (instead of four Business Days), during which time the Company shall be required to comply with the requirements of this Section 5.4(d) anew with respect to each such additional notice, including clauses (A) through (D) above of this proviso. (Page 25)

Section 5.4         Non-Solicitation; Change in Recommendation. <omitted> (e)        Anything in Section 5.4(a) to the contrary notwithstanding, at any time prior to the time the Company Required Vote is obtained, the


Company Board may make a Company Adverse Recommendation Change of the type described in clauses (v), (vi) or (viii) (to the extent relating to the foregoing clauses (v) or (vi)) of the definition thereof in response to an Intervening Event if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel that the failure to make such Company Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law; provided, that (i) the Company shall first notify Parent and Merger Sub in writing at least four Business Days before taking such action that the Company intends to take such action, which notice shall include a reasonably detailed description of such Intervening Event (including the facts and circumstances providing the basis for the determination by the Company Board to effect such Company Adverse Recommendation Change), (ii) the Company and its Representatives shall negotiate in good faith with Parent, Merger Sub and their Representatives during such four Business Day period, to the extent Parent and Merger Sub wish to negotiate and make themselves reasonably available to negotiate, to enable Parent and Merger Sub to jointly propose revisions to the terms of this Agreement, (iii) the Company and its Representatives shall provide to Parent, Merger Sub and their Representatives all applicable information with respect to such Intervening Event reasonably requested by Parent and/or Merger Sub to permit it to propose revisions to the terms of the Agreement, and (iv) upon the end of such notice period, the Company Board shall have considered in good faith any such revisions to the terms of this Agreement committed to in a binding written proposal by Parent and Merger Sub, and shall have determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to make such Company Adverse Recommendation Change in response to such Intervening Event would continue to be inconsistent with its fiduciary duties under applicable Law. (Pages 25-26)

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