Common use of Third Party Proposals Clause in Contracts

Third Party Proposals. None of Seller, the Company, any --------------------- of the Company Subsidiaries, any of their respective Affiliates or any of their respective officers, directors, employees, representatives or advisors ("Representatives") shall directly or indirectly so licit, encourage or facilitate inquiries or proposals, or enter into any definitive agreement, with respect to, or initiate or participate in any negotiations or discussions with any Person concerning, any acquisition or purchase of all or any material portion of the assets of, or of any equity interest in, the Company or any of the Company Subsidiaries or any merger or business combination with the Company or any of the Company Subsidiaries other than as contemplated by this Agreement (each, an "Acquisition Proposal") or furnish any information regarding the Company or the Company Subsidiaries to any such Person. Seller, the Company, and any of their respective Affiliates and Representatives shall notify Buyer immediately if any Acquisition Proposal (including the terms thereof) is received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated with, any of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates or Representatives. Seller, the Company and each of the Company Subsidiaries shall, and shall cause their respective Affiliates and Representatives to, immediately cease or cause to be terminated any existing activities, including discussions or negotiations with any parties, conducted prior to the date hereof with respect to any Acquisition Proposal and shall seek to have all materials distributed to such Persons by Seller, the Company, any Company Subsidiary or any of their respective Affiliates and Representatives returned to Seller promptly. None of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates and Representatives shall amend, modify, waive or terminate, or otherwise release any Person from, any standstill, confidentiality or similar agreement or arrangement currently in effect with respect to the Company and the Company Subsidiaries. Seller, the Company, and the Company Subsidiaries shall cause their respective Affiliates and Representatives to comply with the provisions of this Section 6.11.

Third Party Proposals. None (a) Except as expressly permitted by Section 5.2(b), from the date of Sellerthis Agreement until the Effective Time or, if earlier, the Companytermination of this Agreement in accordance with Article 8, any --------------------- none of the Company Parties shall, and each of the Company Parties shall cause the Company Subsidiaries and the Company Parties’ and the Company Subsidiaries, any of their respective Affiliates or any of their ’ respective officers, directorspartners, employeesmanagers, directors and employees (the “Company Individuals”) not to, and shall use their reasonable best efforts to cause the Company Parties’ and the Company Subsidiaries’ accountants, legal counsel, financial advisors and other representatives or advisors ("collectively with the Company Individuals, the “Company Representatives"”) shall not to, directly or indirectly so licitthrough another Person, encourage (i) solicit or facilitate inquiries or proposalsinitiate, or knowingly encourage any Acquisition Proposal or any inquiries regarding the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Third Party any confidential information with respect to or in connection with, or knowingly facilitate or otherwise cooperate with, any Acquisition Proposal or any inquiry that may reasonably be expected to lead to an Acquisition Proposal, (iii) enter into any definitive agreement, agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal, or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party existing on the date hereof, other than to permit such Third Party to make an Acquisition Proposal in accordance with Section 5.2(b). The Company Parties shall, and shall cause the Company’s Subsidiaries and shall use their reasonable best efforts to cause the Company Representatives to, immediately cease and cause to be terminated all existing discussions or initiate negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information previously furnished, and enforce the provisions of any confidentiality or standstill agreements in place with any Third Parties (including, for the avoidance of doubt, any provisions requiring the prompt return or destruction of all confidential information previously furnished to such Third Parties). (b) Notwithstanding anything to the contrary in Section 5.2(a), at any time from the date of this Agreement and prior to obtaining the Company Unitholder Approvals, if the Company has received from any Third Party a bona fide written Acquisition Proposal made after the date of this Agreement that was not solicited in violation of and did not otherwise result from a breach of this Section 5.2, (i) the Company may negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive on such Third Party than the Confidentiality Agreement is on Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) the Company may furnish non-public information concerning its business, properties or assets to such Third Party pursuant to an Acceptable Confidentiality Agreement, provided, however, that all such information (to the extent not previously provided to Parent) is provided or made available to Parent prior to or substantially concurrent with the time it is provided to such Third Party and (iii) the Company may negotiate and participate in discussions and negotiations with such Third Party concerning such Acquisition Proposal pursuant to an Acceptable Confidentiality Agreement if, prior to taking any negotiations such action referred to in the foregoing clauses (i), (ii) and (iii), (A) such Third Party has submitted a Superior Proposal or discussions an Acquisition Proposal that the Company Board or Conflicts Committee determines in good faith (after consultation with its financial advisor and outside counsel) is reasonably likely to constitute or lead to a Superior Proposal, and (B) the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to take such action constitutes or is reasonably likely to constitute a violation of its fiduciary duties to the Unitholders under applicable Law. (c) Neither Company General Partner, Management General Partner, the Company nor the Company Board (nor any committee thereof, including the Conflicts Committee) shall (i) withdraw or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation or make or cause to be made through any Person concerningany public statement proposing or announcing an intention to withdraw or modify in any manner adverse to Parent or Merger Sub the Company Board Recommendation (any such action, any acquisition a “Change in Recommendation”), (ii) withdraw or purchase of all or any material portion of modify the assets ofGeneral Partner Approval, or of any equity interest in(iii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, or allow the Company General Partner, the Company or any of the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, joint venture agreement, acquisition or merger agreement or other similar agreement constituting an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.2(b)). Notwithstanding the foregoing, the Company Board (including the Conflicts Committee) may, at any time prior to obtaining the Company Unitholder Approvals and subject to compliance with Section 5.2(d), effect a Change in Recommendation in response to (A) a bona fide written Acquisition Proposal made after the date of this Agreement that the Company Board (or the Conflicts Committee, as applicable) reasonably determines in good faith (after consultation with its outside legal and financial advisors) constitutes a Superior Proposal and that was not solicited in violation of this Section 5.2 or (B) an Intervening Event if, in the case of any such Change in Recommendation, the Company Board (or the Conflicts Committee, as applicable) shall have determined in good faith, after consultation with outside counsel, that, in light of such Superior Proposal or Intervening Event, the failure to take such action constitutes or is reasonably likely to constitute a violation of its fiduciary duties to the Unitholders under applicable Law. Any Change in Recommendation shall not change the approval of this Agreement or any merger or business combination with the Company or any other approval of the Company Subsidiaries General Partner, the Company Board or the Conflicts Committee in any respect, including any change that would have the effect of causing any Takeover Statute or other than as similar statute to be applicable to the transactions contemplated hereby (including the Merger). (d) Notwithstanding anything herein to the contrary, the Company Board (including the Conflicts Committee) shall not be entitled to effect a Change in Recommendation or terminate this Agreement pursuant to Section 8.1(j) unless: (i) the Company has provided to Parent three (3) Business Days’ prior written notice (a “Notice”) advising Parent that the Company Board is prepared to take such action and specifying the reasons therefor (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of any such Acquisition Proposal or any change in any such Intervening Event shall require a new Notice and a new three (3) Business Day period); (ii) (A) with respect to an Acquisition Proposal that the Company Board has determined constitutes a Superior Proposal, (x) the Company has provided or made available to Parent all material information concerning its business, properties or assets delivered or made available to the Third Party making such Acquisition Proposal that the Company Board has determined constitutes a Superior Proposal and (y) the Notice includes a description of the material terms and conditions of such Acquisition Proposal and the proposed financing for such Acquisition Proposal (including copies of any written requests, proposals, offers, and proposed agreements) and the identity of the Third Party making the proposal or (B) with respect to an Intervening Event, the Company has provided Parent with written information describing such Intervening Event in reasonable detail; and (iii) during such three (3) Business Day period, if requested by Parent, the Company (A) provides an opportunity for Parent to propose amendments to this Agreement in such a manner that the Acquisition Proposal that was determined to constitute a Superior Proposal no longer is a Superior Proposal or the event or circumstance that was determined to constitute an Intervening Event no longer is an Intervening Event and (B) negotiates and uses its reasonable best efforts to cause the Company Representatives to negotiate in good faith with Parent and its representatives regarding any such amendments to this Agreement; and (iv) at 11:59 p.m., Houston, Texas time, at the end of such three (3) Business Day period, (A) with respect to an Acquisition Proposal that the Company Board has determined constitutes a Superior Proposal, such Acquisition Proposal has not been withdrawn and the Company Board has reasonably concluded in good faith (after consultation with its outside legal and financial advisors) that such Acquisition Proposal continues to constitute a Superior Proposal and (B) with respect to an event or circumstance that the Company Board has determined constitutes an Intervening Event, the Company Board has reasonably concluded that such event or circumstance continues to constitute an Intervening Event; provided, however, that in making the determinations contemplated by this clause (iv), the Company Board shall take into account any changes to the financial and other terms of this Agreement proposed by Parent following the Notice and as a result of the negotiations between Parent and the Company pursuant to this Section 5.2(d). (each, an "Acquisition Proposal"e) Nothing contained in this Section 5.2 or furnish any information regarding other provision of this Agreement shall prohibit the Company or the Company Subsidiaries Board (either by the full Company Board or through a committee thereof, including the Conflicts Committee) from (A) taking and disclosing to Unitholders a position with respect to a tender or exchange offer by a Third Party contemplated by Rule 14e-2(a) or making a statement required under Rule 14d-9 under the Exchange Act or (B) making any disclosure to the Unitholders if either the full Company Board or a committee thereof, including the Conflicts Committee, has determined, in good faith, after consultation with outside counsel, that the failure to make such disclosure constitutes or would be reasonably likely to constitute a violation of its fiduciary duties to the Unitholders under applicable Law, provided, however, that (i) compliance with such rules shall in no way limit Parent’s right to terminate this Agreement pursuant to Section 8.1 hereof and receive payment of any Termination Fee and any other amounts payable to it pursuant to Section 8.3, and (ii) in no event shall the Company or the Company Board (or any committee thereof, including the Conflicts Committee) (A) effect, or agree or resolve to effect, a Change in Recommendation except as permitted by Section 5.2(c), or (B) withdraw or modify, in a manner adverse to Parent or Merger Sub, the General Partner Approval. (f) The Company will promptly (and in any event within 24 hours after receipt) advise Parent in writing of the receipt by the Company of any Acquisition Proposal after the date of this Agreement, the material terms and conditions of any such Person. Seller, Acquisition Proposal and the Company, and any of their respective Affiliates and Representatives shall notify Buyer immediately if any proposed financing for such Acquisition Proposal (including copies of any written requests, proposals, offers, and proposed agreements) and the identity of the Person making any such Acquisition Proposal. The Company will keep Parent promptly and reasonably informed in all material respects of the status and details (including any material change to the terms thereof) is received by, of any such information is requested from, or any such negotiations or discussions are sought to be initiated with, any of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates or Representatives. Seller, the Company and each of the Company Subsidiaries shall, and shall cause their respective Affiliates and Representatives to, immediately cease or cause to be terminated any existing activities, including discussions or negotiations with any parties, conducted prior to the date hereof with respect to any Acquisition Proposal and shall seek to have all materials distributed to the proposed financing for such Persons by SellerAcquisition Proposal. (g) As used in this Agreement, the Company, any Company Subsidiary or any of their respective Affiliates and Representatives returned to Seller promptly. None of Seller, following terms have the Company, the Company Subsidiaries or any of their respective Affiliates and Representatives shall amend, modify, waive or terminate, or otherwise release any Person from, any standstill, confidentiality or similar agreement or arrangement currently in effect with respect to the Company and the Company Subsidiaries. Seller, the Company, and the Company Subsidiaries shall cause their respective Affiliates and Representatives to comply with the provisions of this Section 6.11.meanings set forth below:

Third Party Proposals. None During the period from the date hereof through the Closing Date or the date on which this Agreement is terminated pursuant to Section 8.1 hereof, none of SellerKAR, the Company, any --------------------- of the Company Subsidiaries, any of their respective Affiliates Equityholders or any of their respective officersRepresentatives or advisors, directors, employees, representatives or advisors ("Representatives") shall directly or indirectly so licit, encourage or facilitate solicit inquiries or proposals, or enter into any definitive agreement, with respect to, or initiate or participate in any negotiations or discussions with any Person concerning, any acquisition or purchase of all or any material a substantial portion of the assets of, or of any Membership Interest, or other equity interest in, the Company or any of the Company Subsidiaries KAR, or any merger or business combination with the Company KAR or any voluntary assignment of the Company Subsidiaries any investment advisory, sub-advisory, administrative or distribution agreements of KAR, in each case other than as contemplated by this Agreement (each, an "Acquisition Proposal") or furnish any information regarding the Company or the Company Subsidiaries to any such Person. Seller, KAR and the Company, and any of their respective Affiliates and Representatives Equityholders shall notify Buyer immediately if any Acquisition Proposal (including the terms thereof) is received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated with, any of SellerKAR, the Company, the Company Subsidiaries Equityholders or any of their respective Affiliates Representatives or Representativesadvisors. Seller, KAR and the Company and each of the Company Subsidiaries Equityholders shall, and shall cause their respective Affiliates Representatives and Representatives advisors to, immediately cease or cause to be terminated any existing activities, including discussions or negotiations with any parties, conducted prior to the date hereof with respect to any Acquisition Proposal and shall seek to have all materials distributed to such Persons by Sellerin connection therewith returned to KAR promptly or destroyed. None of KAR, the Company, any Company Subsidiary Equityholders or any of their respective Affiliates and Affiliates, Representatives returned to Seller promptly. None of Selleror advisors, the Company, the Company Subsidiaries or any of their respective Affiliates and Representatives shall amend, modify, waive or terminate, or otherwise release any Person from, any standstill, confidentiality or similar agreement or arrangement currently in effect with respect to the Company and the Company Subsidiaries. Seller, the Company, and the Company Subsidiaries shall cause their respective Affiliates and Representatives to comply with the provisions of this Section 6.11effect.

Third Party Proposals. None of Seller, the CompanyBancorp, any --------------------- of the Company Bancorp Subsidiaries, any of their respective the Affiliates of the foregoing or any of their respective officers, directors, employees, representatives or advisors of the foregoing ("Representatives") shall directly or indirectly so licitsolicit, encourage or facilitate inquiries or proposals, or enter into any definitive agreement, with respect to, or initiate or participate in any negotiations or discussions with any Person concerning, any acquisition or purchase of all or any material portion of the assets of, or of any material equity interest in, the Company Bancorp or any of the Company Bancorp Subsidiaries or any merger or business combination with the Company or involving Bancorp or any of the Company Bancorp Subsidiaries other than as contemplated by this Agreement (each, an "Acquisition Proposal") or furnish any information regarding the Company Bancorp or the Company Bancorp Subsidiaries to any such Person; provided, however, that the Board of Directors of Bancorp may, and may authorize and permit its Representatives to, furnish or cause to be furnished nonpublic information, subject to a binding confidentiality agreement with Bancorp on substantially similar terms as the Confidentiality Agreements, to such Person and may participate in such discussions and negotiations directly or through its Representatives with such Person, if (i) such Board of Directors has reasonably determined in good faith based upon the advice of counsel, which counsel either is Xxxxxxx, Spidi, Sloane & Xxxxx, P.C. or is otherwise reasonably acceptable to Commercial, to the effect that the failure to provide such nonpublic information or participate in such negotiations and discussions would constitute a violation of the Board's fiduciary duties under Applicable Law and (ii) copies of all information so furnished to such Person and the terms of such Person's Acquisition Proposal (and any supplements or amendments thereto) are furnished promptly to Commercial. SellerBancorp, the Company, Company and any of their respective Affiliates and Representatives shall notify Buyer Commercial immediately if any Acquisition Proposal (including the terms thereof) is received by, any such information is requested from, from or any such negotiations or discussions are sought to be initiated with, with any of SellerBancorp, the Company, the Company Bancorp Subsidiaries or any of their respective the Affiliates or RepresentativesRepresentatives of the foregoing. Seller, the Company Bancorp and each of the Company Bancorp Subsidiaries shall, and shall cause their respective Affiliates and Representatives to, immediately cease or cause to be terminated any existing activities, including discussions or negotiations with any parties, conducted prior to the date hereof with respect to any Acquisition Proposal and shall seek to have all materials distributed to such Persons by Seller, the Companyor on behalf of Bancorp, any Company Bancorp Subsidiary or any of their respective Affiliates and Representatives returned to Seller Bancorp promptly. None of SellerBancorp, the Company, the Company Bancorp Subsidiaries or any of their respective Affiliates and Representatives shall amend, modify, waive or terminate, or otherwise release any Person from, any standstill, confidentiality or similar agreement or arrangement currently in effect with respect to Bancorp or any of the Company Bancorp Subsidiaries. Bancorp and the Company Subsidiaries. Seller, the Company, and the Company Bancorp Subsidiaries shall cause their respective Affiliates and Representatives to comply with the provisions of this Section 6.116.10. Nothing contained in this Agreement shall require Bancorp or the Bancorp Board to take any action or fail to take any action in violation of Applicable Laws.

Third Party Proposals. None of SellerDuring the period from the date hereof through the Closing Date or the date on which this Agreement is terminated pursuant to Section 8.1 hereof, the Company, any --------------------- none of the Company SubsidiariesCompanies, any of their respective Affiliates Subsidiaries, the Equityholders or any of their respective officersAffiliates, directorsRepresentatives or advisors, employees, representatives or advisors ("Representatives") shall directly or indirectly so licit, solicit or encourage or facilitate inquiries or proposals, or enter into any definitive agreement, with respect to, or initiate or participate in any negotiations or discussions with any Person concerning, any acquisition or purchase of all or any material a substantial portion of the assets of, or of any Partnership Interest, Share or other equity interest in, any of the Company Companies or any of the Company their Subsidiaries (other than as may concern any Affiliated Investment Partnership Management Companies and Watermark Securities, Inc.) or any merger or business combination with any of the Company Companies or any of their Subsidiaries (other than as may concern any Affiliated Investment Partnership Management Companies and Watermark Securities, Inc.) or any voluntary assignment of any investment advisory, sub-advisory, administrative or distribution agreements of any of the Company Subsidiaries Companies, in each case other than as contemplated by this Agreement (each, an "Acquisition Proposal") ), or furnish any information regarding the Company or the Company Subsidiaries to any such Person. SellerThe Companies, the Company, Equityholders and any of their respective Affiliates Affiliates, Representatives and Representatives advisors shall notify Buyer immediately if any Acquisition Proposal (including the terms thereof) is received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated with, any of Sellerthe Companies, their Subsidiaries, the Company, the Company Subsidiaries Equityholders or any of their respective Affiliates Affiliates, Representatives or Representativesadvisors (other than as many concern any Affiliated Investment Partnership Management Companies and Watermark Securities, Inc.). Seller, The Companies and the Company and each of the Company Subsidiaries Equityholders shall, and shall cause their respective Affiliates Affiliates, Representatives and Representatives advisors to, immediately cease or cause to be terminated any existing activities, including discussions or negotiations with any parties, conducted prior to the date hereof with respect to any Acquisition Proposal and shall seek to have all materials distributed to such Persons in connection therewith by Sellerthe Companies, the Company, any Company Subsidiary Equityholders or any of their respective Affiliates and Affiliates, Representatives or advisors returned to Seller promptlythe Companies promptly or destroyed. None of Sellerany of the Companies, the Company, the Company Subsidiaries Equityholders or any of their respective Affiliates and Affiliates, Representatives or advisors, shall amend, modify, waive or terminate, or otherwise release any Person from, any standstill, confidentiality or similar agreement or arrangement currently in effect with respect to the Company effect. The Companies and the Company Subsidiaries. Seller, the Company, and the Company Subsidiaries Equityholders shall cause their respective Affiliates Affiliates, Representatives and Representatives advisors to comply with the provisions of this Section 6.117.3.

Third Party Proposals. None of Seller, the CompanyBancorp, any --------------------- of the Company Bancorp --------------------- Subsidiaries, any of their respective the Affiliates of the foregoing or any of their respective officers, directors, employees, representatives or advisors of the foregoing ("Representatives") shall directly or indirectly so licitsolicit, encourage or facilitate inquiries or proposals, or enter into any definitive agreement, with respect to, or initiate or participate in any negotiations or discussions with any Person concerning, any acquisition or purchase of all or any material portion of the assets of, or of any material equity interest in, the Company Bancorp or any of the Company Bancorp Subsidiaries or any merger or business combination with the Company or involving Bancorp or any of the Company Bancorp Subsidiaries other than as contemplated by this Agreement (each, an "Acquisition Proposal") or furnish any information regarding the Company Bancorp or the Company Bancorp Subsidiaries to any such Person; provided, however, that the Board of -------- ------- Directors of Bancorp may, and may authorize and permit its Representatives to, furnish or cause to be furnished nonpublic information, subject to a binding confidentiality agreement with Bancorp on substantially similar terms as the Confidentiality Agreements, to such Person and may participate in such discussions and negotiations directly or through its Representatives with such Person, if (i) such Board of Directors has reasonably determined in good faith based upon the advice of counsel, which counsel either is Xxxxxxx, Spidi, Sloane & Xxxxx, P.C. or is otherwise reasonably acceptable to Commercial, to the effect that the failure to provide such nonpublic information or participate in such negotiations and discussions would constitute a violation of the Board's fiduciary duties under Applicable Law and (ii) copies of all information so furnished to such Person and the terms of such Person's Acquisition Proposal (and any supplements or amendments thereto) are furnished promptly to Commercial. SellerBancorp, the Company, Company and any of their respective Affiliates and Representatives shall notify Buyer Commercial immediately if any Acquisition Proposal (including the terms thereof) is received by, any such information is requested from, from or any such negotiations or discussions are sought to be initiated with, with any of SellerBancorp, the Company, the Company Bancorp Subsidiaries or any of their respective the Affiliates or RepresentativesRepresentatives of the foregoing. Seller, the Company Bancorp and each of the Company Bancorp Subsidiaries shall, and shall cause their respective Affiliates and Representatives to, immediately cease or cause to be terminated any existing activities, including discussions or negotiations with any parties, conducted prior to the date hereof with respect to any Acquisition Proposal and shall seek to have all materials distributed to such Persons by Seller, the Companyor on behalf of Bancorp, any Company Bancorp Subsidiary or any of their respective Affiliates and Representatives returned to Seller Bancorp promptly. None of SellerBancorp, the Company, the Company Bancorp Subsidiaries or any of their respective Affiliates and Representatives shall amend, modify, waive or terminate, or otherwise release any Person from, any standstill, confidentiality or similar agreement or arrangement currently in effect with respect to Bancorp or any of the Company Bancorp Subsidiaries. Bancorp and the Company Subsidiaries. Seller, the Company, and the Company Bancorp Subsidiaries shall cause their respective Affiliates and Representatives to comply with the provisions of this Section 6.116.10. Nothing contained in this Agreement shall require Bancorp or the Bancorp Board to take any action or fail to take any action in violation of Applicable Laws.