Common use of Company Takeover Proposals Clause in Contracts

Company Takeover Proposals. (a) If on or after the date of this Agreement and at any time prior to the Company Stockholders Meeting: (i) the Company receives an unsolicited bona fide Takeover Proposal (under circumstances in which the Company has complied in all material respects with the provisions of Sections 7.5(a) and (b)) and (ii) the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined in good faith, after consultation with its outside legal counsel and, with respect to financial matters, its financial advisor, that (x) failure to consider such Takeover Proposal would be a breach of the standard of conduct applicable to the Company Board and (y) such Takeover Proposal constitutes or is reasonably likely to result in a Company Superior Proposal, then, subject to compliance with this Section 7.6(a), the Company may engage in negotiations or discussions with such Person who has made the unsolicited bona fide Takeover Proposal and provide information in response to a request therefor by a Person who has made such Takeover Proposal if the Company (A) receives from such Person an executed confidentiality agreement with customary terms (but need not contain any standstill provisions) and (B) provides the Acquiror a copy of all such information that has not previously been delivered to the Acquiror simultaneously with delivery to such Person (or such Person’s Representatives or Affiliates). If on or after the date of this Agreement and at any time prior to the Company Stockholders Meeting, the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined, after consultation with its outside legal counsel and after compliance with its obligations under this Section 7.6(a) and Section 7.6(b), that continued recommendation of the approval of the Company Matters to the Company’s stockholders would be a breach of the standard of conduct applicable to the Company Board as a result of a Company Superior Proposal, the Company may (A) withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), the approval, adoption, recommendation or declaration of advisability by the Company Board of the Company Matters, including the Company Recommendation, and/or (B) fail to include the Company Recommendation in the Joint Proxy Statement/Prospectus (any action described in clause (A) and (B) referred to as a “Company Adverse Recommendation Change”).

Company Takeover Proposals. (a) If on The Company shall not, nor shall it authorize or after permit any Company Subsidiary to, nor shall it authorize or permit any of its or any Company Subsidiary’s Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any Company Takeover Proposal or any inquiries or the date making of this Agreement and any proposal that constitutes or could reasonably be expected to lead to a Company Takeover Proposal; or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise cooperate in any way with any Company Takeover Proposal; provided, however, that at any time prior to the Share Acceptance, the Company Stockholders Meetingmay, in response to a bona fide unsolicited Company Takeover Proposal, and subject to compliance with this Section 4.02: (ix) furnish information with respect to the Company receives an unsolicited bona fide to the person making such Company Takeover Proposal (under circumstances in which and its representatives) pursuant to a confidentiality agreement that is no less favorable to the Company has complied than the Confidentiality Agreement between Equity Group Investments, L.L.C. and the Company dated July 19, 2004, provided that all of such information not previously supplied to Acquirer is provided to Acquirer on a substantially concurrent basis; and (y) participate in all material respects discussions and negotiations with the provisions of Sections 7.5(aperson making such Company Takeover Proposal (and its representatives) and regarding such Company Takeover Proposal, if (b)) and (ii1) the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined Special Committee determines in good faith, after consultation with its outside legal counsel and, with respect to financial matters, its financial advisorcounsel, that (x) failure it is required to consider such Takeover Proposal would be a breach of the standard of conduct applicable do so in order to the Company Board and (y) such Takeover Proposal constitutes or is reasonably likely to result in a Company Superior Proposal, then, subject to compliance with this Section 7.6(a), the Company may engage in negotiations or discussions with such Person who has made the unsolicited bona fide Takeover Proposal and provide information in response to a request therefor by a Person who has made such Takeover Proposal if the Company (A) receives from such Person an executed confidentiality agreement with customary terms (but need not contain any standstill provisions) and (B) provides the Acquiror a copy of all such information that has not previously been delivered to the Acquiror simultaneously with delivery to such Person (or such Person’s Representatives or Affiliates). If on or after the date of this Agreement and at any time prior to the Company Stockholders Meeting, the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined, after consultation comply with its outside legal counsel and after compliance with its obligations under this Section 7.6(a) and Section 7.6(b), that continued recommendation of the approval of the Company Matters fiduciary duties to the Company’s stockholders would under applicable law, (2) the Special Committee determines that such Company Takeover Proposal constitutes a Superior Company Proposal, or a Company Takeover Proposal that could reasonably be expected to result in a Superior Company Proposal, and (3) the Company provides Acquirer with notice that it intends to engage in any of the actions contemplated in clauses (x) and (y) above, identifying the Company Takeover Proposal and the parties thereto and delivering an accurate description of all material terms of the Company Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.02(a) by any director, officer or employee of the Company or any of its Subsidiaries or any financial advisor, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of the standard of conduct applicable to the Company Board as a result of a Company Superior Proposal, the Company may (Athis Section 4.02(a) withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), the approval, adoption, recommendation or declaration of advisability by the Company Board of the Company Matters, including the Company Recommendation, and/or (B) fail to include the Company Recommendation in the Joint Proxy Statement/Prospectus (any action described in clause (A) and (B) referred to as a “Company Adverse Recommendation Change”)Company.

Company Takeover Proposals. Pursuant to the Merger Agreement, the Company was required to, and to cause its Representatives (as defined below) to, cease immediately all current discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to lead to, a Company Takeover Proposal (as defined below). Further, the Company has agreed that it will not, and will not authorize or permit any of its subsidiaries, or any officer, director, employee, investment banker, financial advisor, attorney, accountant or other advisor or representative (collectively, "Representatives") of the Company or any of its subsidiaries to, (i) directly or indirectly solicit, initiate or encourage the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal; PROVIDED, HOWEVER, that prior to the earlier to occur of acceptance for payment of Shares pursuant to the Offer and approval of the Merger Agreement by the Company's shareholders, the Company may, to the extent that a failure to do so would violate the fiduciary obligations of the Company Board under applicable law, as determined in good faith by a majority of the Disinterested Directors (as defined below) based on the advice of outside counsel, in response to a Superior Company Proposal (as defined below) that was not solicited by the Company or its Representatives and that did not otherwise result from a breach or a deemed breach of this provision, and subject to compliance with the notice requirements described below, (x) furnish information with respect to the Company to the person making such Superior Company Proposal pursuant to a confidentiality agreement not less restrictive of the other party than the confidentiality agreement between the Company and Parent and (y) participate in discussions or negotiations regarding such Superior Company Proposal. "Disinterested Director" means, with respect to any Company Takeover Proposal, any member of the Company Board that is not an affiliate or Representative of the person making such Company Takeover Proposal. Without limiting the foregoing, any violation of the restrictions set forth in the preceding sentence by any Representative or affiliate of the Company or any subsidiary of the Company, whether or not such person is purporting to act on behalf of the Company or any subsidiary of the Company or otherwise, would be deemed to be a breach of the Merger Agreement by the Company. The Merger Agreement provides further that, except as described below, neither the Company, nor the Board nor any committee thereof shall (a) If on withdraw or after modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or the date Purchaser, the approval or recommendation by the Company Board or any such committee of this Agreement and at the Transaction Agreements, the Offer or the Merger, (b) approve or cause the Company or any time subsidiary of the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement (each, an "Acquisition Agreement") relating to any Company Takeover Proposal or (c) approve or recommend, or propose publicly to approve or recommend, any Company Takeover Proposal. Notwithstanding the foregoing, if, prior to the earlier to occur of acceptance for payment of Shares pursuant to the Offer and approval of the Merger Agreement by the shareholders of the Company, the Board receives a Superior Company Stockholders Meeting: Proposal which was not solicited by the Company and which did not otherwise result from a breach of the non-solicitation provisions of the Merger Agreement, and the Board determines in good faith, based on the advice of outside counsel, that the failure to do so would violate its fiduciary obligations under applicable law, the Board may withdraw or modify its approval or recommendation of the Transaction Agreements, the Offer or the Merger; PROVIDED that such determination shall be made at a time that is after the third business day following the receipt by Parent of written notice advising Parent that the Board is prepared to accept a Superior Company Proposal, specifying the material terms and conditions of such Superior Company Proposal and identifying the person making such Superior Company Proposal. In addition, under the Merger Agreement, the Company has agreed to promptly advise Parent, orally and in writing, of any Company Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Company Takeover Proposal (including any change to the terms of any such Company Takeover Proposal or inquiry) and the identity of the person making any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status of any such Company receives an unsolicited bona fide Takeover Proposal or inquiry (under circumstances in which including any change to the terms of any such Company has complied in all material respects with the provisions of Sections 7.5(a) and (b)Takeover Proposal or inquiry) and (ii) provide to Parent copies of all correspondence and other written material sent or provided by any third party to the Company, or by the Company Boardto any third party, including in connection with any Company Takeover Proposal, as soon as practicable after receipt or delivery thereof. The Merger Agreement provides that the provisions described above will not prohibit the Company from taking and disclosing to its shareholders a majority of position contemplated by Rule 14e-2(a) promulgated under the Independent Directors Exchange Act or making any disclosure to the Company's shareholders if, in the good faith judgment of the Company Board, based on the advice of outside counsel, failure so to disclose would constitute a violation of applicable law; PROVIDED, HOWEVER, that neither the Company, nor the Board nor any committee thereof shall have determined in good faithwithdraw or modify, after consultation with or propose publicly to withdraw or modify, its outside legal counsel and, position with respect to financial mattersthe Transaction Agreements, its financial advisorthe Offer or the Merger (unless it is permitted to do so as described above) or approve or recommend, that (x) failure or propose publicly to consider such Takeover Proposal would be a breach of the standard of conduct applicable to the Company Board and (y) such Takeover Proposal constitutes approve or is reasonably likely to result in recommend, a Company Superior Takeover Proposal, then, subject to compliance with this Section 7.6(a), the Company may engage in negotiations or discussions with such Person who has made the unsolicited bona fide Takeover Proposal and provide information in response to a request therefor by a Person who has made such Takeover Proposal if the Company (A) receives from such Person an executed confidentiality agreement with customary terms (but need not contain any standstill provisions) and (B) provides the Acquiror a copy of all such information that has not previously been delivered to the Acquiror simultaneously with delivery to such Person (or such Person’s Representatives or Affiliates). If on or after the date of this Agreement and at any time prior to the Company Stockholders Meeting, the Company Board, including a majority of the Independent Directors of the Company Board, shall have determined, after consultation with its outside legal counsel and after compliance with its obligations under this Section 7.6(a) and Section 7.6(b), that continued recommendation of the approval of the Company Matters to the Company’s stockholders would be a breach of the standard of conduct applicable to the Company Board as a result of a Company Superior Proposal, the Company may (A) withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to the Acquiror), the approval, adoption, recommendation or declaration of advisability by the Company Board of the Company Matters, including the Company Recommendation, and/or (B) fail to include the Company Recommendation in the Joint Proxy Statement/Prospectus (any action described in clause (A) and (B) referred to as a “Company Adverse Recommendation Change”).