Common use of Acquisition Transactions Clause in Contracts

Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall not, shall not permit any of its subsidiaries to, and shall not authorize or permit any officer, director or employee or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in Section 4.1(b), (i) initiate, solicit, negotiate, encourage, or provide confidential information to facilitate any proposal or offer to acquire all or any substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (such transactions being referred to herein as "Acquisition Transactions"), (ii) enter into any agreement with respect to any Acquisition Transaction or give any approval of the type referred to in Section 4.1(b) with respect to 20 Agreement and Plan of Merger any Acquisition Transaction or (iii) participate in any discussions regarding, 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 Acquisition Transaction. Notwithstanding the immediately preceding sentence, the Company and its subsidiaries may, prior to the Company Stockholder Approval (as defined in Section 4.7), in response to any unsolicited proposal for an Acquisition Transaction, furnish information concerning its business, properties or assets to the corporation, partnership, person or other entity or group (a "Potential Acquiror") making such proposal for an Acquisition Transaction and participate in negotiations with the Potential Acquiror if (x) the Company's Board of Directors, after consultation with one or more of its independent financial advisors, is of the reasonable belief that such Potential Acquiror has the financial wherewithal to consummate such an Acquisition Transaction, (y) the Company's Board of Directors reasonably determines, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's Board of Directors determines in good faith that it is necessary to so furnish information and negotiate in order to comply with its fiduciary duty to stockholders of the Company. In the event the Company shall determine to provide any information as described above or shall receive any offer of the type referred to in this Section 4.1 or shall receive or become aware of any other proposal to acquire a substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or to acquire a substantial amount of capital stock of the Company, it shall promptly inform Parent orally as to the fact that information is to be provided and shall furnish to Parent the identity of the recipient of such information and/or the proponent of any such offer or proposal and a description of the material terms thereof. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transaction).

Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall not, and shall not permit any of its subsidiaries todirectors, and shall not authorize officers, employees or permit any officeraffiliates, director or employee or any investment banker, financial advisor, attorney, accountant accountant, or other advisor advisor, agent, or representative representative, to take or cause or permit any person to take, directly or indirectly, any of the following actions with any party other than Parent and its designees: (a) initiate, solicit, seek or participate in, directly or indirectly, any negotiations, discussions, inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to the Company Shareholders) to acquire all or any part of the business or substantial properties of the Company or any of its subsidiaries to, directly or indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in Section 4.1(b), (i) initiate, solicit, negotiate, encourage, or provide confidential information to facilitate any proposal or offer to acquire all Company Subsidiary or any substantial part portion of the business and properties any class of the Company and its subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the capital stock of the CompanyStock, whether by merger, purchase of assets, tender offer or otherwiseotherwise (each of the foregoing, a “Restricted Transaction”), whether for cash, securities or any other consideration or combination thereof (such except for the transactions being referred to herein as "Acquisition Transactions"), contemplated herein; (ii) disclose, in connection with a Restricted Transaction, any nonpublic information not customarily disclosed to any person other than Parent or its representatives concerning the Company’s business or properties or afford to any person other than Parent or its representatives access to its properties, books, or records, except in the ordinary course of business or as required by law or pursuant to a governmental request for information; (iii) enter into or execute any agreement relating to a Restricted Transaction; or (iv) make or authorize any public statement, recommendation, or solicitation in support of any Restricted Transaction or any offer or proposal relating to a Restricted Transaction other than with respect to any Acquisition Transaction or give any approval of the type referred to in Section 4.1(b) with respect to 20 Agreement and Plan of Merger any Acquisition Transaction or (iii) participate in any discussions regarding, 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 Acquisition Transaction. Notwithstanding the immediately preceding sentence, the Company and its subsidiaries may, prior to the Company Stockholder Approval (as defined in Section 4.7), in response to any unsolicited proposal for an Acquisition Transaction, furnish information concerning its business, properties or assets to the corporation, partnership, person or other entity or group (a "Potential Acquiror") making such proposal for an Acquisition Transaction and participate in negotiations with the Potential Acquiror if (x) the Company's Board of Directors, after consultation with one or more of its independent financial advisors, is of the reasonable belief that such Potential Acquiror has the financial wherewithal to consummate such an Acquisition Transaction, (y) the Company's Board of Directors reasonably determines, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's Board of Directors determines in good faith that it is necessary to so furnish information and negotiate in order to comply with its fiduciary duty to stockholders of the CompanyMerger. In the event that the Company shall determine to provide or any information as described above or shall receive Company Subsidiary is contacted by any offer of the type referred to third party expressing an interest in this Section 4.1 or shall receive or become aware of any other proposal to acquire discussing a substantial part of the business and properties of Restricted Transaction, the Company and its subsidiarieswill promptly, taken as a whole, or to acquire a substantial amount of capital stock of but in no event later than twenty-four (24) hours following the Company’s knowledge of such contact, it shall promptly inform notify Parent orally as to the fact that information is to be provided in writing of such contact and shall furnish to Parent the identity of the recipient of such information and/or party so contacting the proponent Company or any Company Subsidiary and shall promptly, but in no event later than twenty-four (24) hours, advise Parent of any such offer material modification or proposal and a description of the material terms thereof. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transaction)modification thereto.

Acquisition Transactions. Prior to the date on which designees of Acquisition constitute a majority of the directors of Xxxxxxxx, Xxxxxxxx agrees (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall not, shall not permit that neither it nor any of its subsidiaries tothe Subsidiaries shall, nor shall it or any of the Subsidiaries permit their respective officers, directors, executive employees, agents and shall not authorize or permit any officerrepresentatives (including, director or employee or without limitation, any investment banker, attorney, attorney or accountant or other advisor or representative of the Company retained by it or any of its subsidiaries the Subsidiaries) to, initiate, solicit or encourage, directly or indirectly, except as otherwise expressly permitted in this Section 4.1(a) any inquiries or in Section 4.1(b)the making or implementation of any proposal or offer (including, (i) initiatewithout limitation, solicit, negotiate, encourage, or provide confidential information to facilitate any proposal or offer to acquire all or any substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (such transactions being referred to herein as "Acquisition Transactions"), (ii) enter into any agreement with respect to any Acquisition Transaction or give any approval of the type referred to in Section 4.1(bshareholders) with respect to 20 a merger, consolidation or other business combination, sale of a material amount of assets outside of the ordinary course of business or the issuance of Voting Debt or Options, sale of shares of capital stock outside of the ordinary course of business or similar transaction involving Xxxxxxxx or any of the Subsidiaries (any such transaction being hereinafter referred to as an "Acquisition Transaction") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Transaction (excluding the Offer and the Merger contemplated by this Agreement and Plan of Merger excluding any Acquisition Transaction or (iii) participate in any discussions regardingsuch matter described on SCHEDULE 5.02), or take any other action to otherwise facilitate any inquiries effort or the making of any proposal that constitutes attempt to make or may reasonably be expected to lead to any Acquisition Transaction. Notwithstanding the immediately preceding sentence, the Company and its subsidiaries may, prior to the Company Stockholder Approval (as defined in Section 4.7), in response to any unsolicited proposal for implement an Acquisition Transaction; and (b) that it will notify Acquisition promptly with all relevant details if any such inquiries or proposals are received by, furnish any such information concerning its businessis requested from, properties or assets any such negotiations or discussions are sought to be initiated or continued with, it, and if said inquiry or proposal is in writing it will deliver to Acquisition a copy of such inquiry or proposal as promptly as is practicable; provided, however, that nothing contained in this Section 5.01 shall prohibit the corporation, partnership, person or other entity or group (a "Potential Acquiror") making such proposal for an Acquisition Transaction and participate in negotiations with the Potential Acquiror if (x) the Company's Board of Directors, after consultation with one or more of its independent financial advisors, is of the reasonable belief that such Potential Acquiror has the financial wherewithal to consummate such an Acquisition Transaction, (y) the Company's Board of Directors reasonably determines, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's Board of Directors determines in good faith that it is necessary to so furnish information and negotiate in order to comply with its fiduciary duty to stockholders of the Company. In the event the Company shall determine to provide any information as described above or shall receive any offer of the type referred to in this Section 4.1 or shall receive or become aware of any other proposal to acquire a substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or to acquire a substantial amount of capital stock of the Company, it shall promptly inform Parent orally as to the fact that information is to be provided and shall furnish to Parent the identity of the recipient of such information and/or the proponent of any such offer or proposal and a description of the material terms thereof. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transaction).or

Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company shall not, shall not permit any of its subsidiaries to, and shall not authorize or permit any officer, director or employee or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in Section 4.1(b), (i) initiate, solicit, negotiate, encourage, or provide confidential information to facilitate any proposal or offer to acquire all or any substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 2520% or more of the capital stock of the Company, or 20% or more of the Senior Notes, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (such transactions being referred to herein as "Acquisition Transactions"), (ii) enter into any agreement with respect to any Acquisition Transaction or give any approval of the type referred to in Section 4.1(b3.1(b) with respect to 20 Agreement and Plan of Merger any Acquisition Transaction or (iii) participate in any discussions regarding, 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 Acquisition Transaction. Notwithstanding the immediately preceding sentence; provided, the Company and its subsidiaries mayhowever, prior to the Company Stockholder Approval (as defined in Section 4.7)that, in response to any unsolicited proposal for an Acquisition Transaction, the Company and its subsidiaries may (at any time prior to adoption of this Agreement by the stockholders of the Company ("Company Stockholder Approval")) furnish information concerning its business, properties or assets to the corporation, partnership, person or other entity or group (a "Potential Acquiror") making such proposal for an Acquisition Transaction and participate in negotiations with the Potential Acquiror if (x) the Company's Board of Directors, after consultation with one or more of its independent financial advisors, is of the reasonable belief that such Potential Acquiror has the financial wherewithal to consummate such an Acquisition Transaction, (y) the Company's Board of Directors reasonably determines, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's Board of Directors determines in good faith that it is necessary to so furnish information and negotiate in order to comply with its fiduciary duty to stockholders of the Company. In the event the Company shall determine to provide any information as described above or shall receive any offer of the type referred to in this Section 4.1 or shall receive or become aware of any other proposal to acquire a substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or to acquire a substantial amount of capital stock of the Company, it shall promptly inform Parent orally as to the fact that information is to be provided and shall furnish to Parent the identity of the recipient of such information and/or the proponent of any such offer or proposal and a description of the material terms thereof. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transaction).making

Acquisition Transactions. (a) After The Company will not, and will cause the date hereof Company Subsidiaries and prior to its and the Effective Time or earlier termination Company Subsidiaries' respective officers, directors, employees, agents and affiliates (each of this Agreementthe foregoing other than the Company, unless Parent shall otherwise agree in writingincluding, without limitation, the Company shall notSubsidiaries, shall being a "Restricted Person") not permit any of its subsidiaries to, directly or knowingly indirectly, solicit, authorize, initiate or encourage submission of, any proposal, offer, tender offer or exchange offer from any Person relating to any Acquisition Transaction (as defined herein), or participate in any negotiations in connection with or in furtherance of any Acquisition Transaction, or furnish to any person other than Purchaser and shall not authorize or permit its representatives any officer, director or employee or any investment banker, attorney, accountant or other advisor or representative of non-public information with respect to the Company or any of its subsidiaries the Company Subsidiaries in connection with or in furtherance of any of the foregoing. Notwithstanding the foregoing or anything elsewhere contained in this Agreement, the Company and each Restricted Person may, in response to a written proposal (unsolicited after the date hereof) from a third party regarding or with respect to the possibility of a Superior Acquisition Proposal (as herein defined), furnish information to, directly negotiate or indirectlyotherwise engage in discussions with, except as otherwise expressly permitted such third party, if the Board of Directors of the Company determines in this Section 4.1(a) or in Section 4.1(b)good faith, (i) initiateafter consultation with its financial advisor and after considering the written advice of its outside counsel, solicitthat failing to take such action would be inconsistent with the fiduciary duties of such Board of Directors under applicable law. The Company shall immediately cease and cause to be terminated any existing activities, negotiate, encouragediscussions, or negotiations with any parties (other than the Purchaser) conducted heretofore with respect to any of the foregoing. The Company shall promptly provide confidential information to facilitate Purchaser telephone notice of any proposal or offer for an Acquisition Transaction received after the date of this Agreement and shall promptly provide Purchaser with the name of any party seeking after the date of this Agreement to acquire all engage in discussions or any substantial part of the business and properties of the Company and its subsidiaries, taken as a wholenegotiations, or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) requesting information, in connection with an Acquisition Transaction, and, after receipt of 25% or more of the capital stock of the Company, whether by merger, purchase of assets, tender a written offer or otherwise, whether for cash, securities or any other consideration or combination thereof (proposal from such transactions being referred to herein as "Acquisition Transactions"), (ii) enter into any agreement party with respect to any such an Acquisition Transaction or give any approval Transaction, a description of the type referred to material economic terms and conditions of such offer or proposal, including without limitation, as may be contained in Section 4.1(b) any agreements or other related documents with respect to 20 Agreement such offer or proposal, except that neither the identity of the party making any such offer or proposal or seeking to engage in such discussions or negotiations or such information, nor such terms and Plan of Merger any Acquisition Transaction or conditions, shall be required to be disclosed (iii) participate except in any discussions regarding, 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 Acquisition Transaction. Notwithstanding the immediately preceding sentence, the Company and its subsidiaries may, prior to the Company Stockholder Approval a Superior Proposal Termination Notice (as defined in Section 4.77.1 hereof), in response to any unsolicited proposal for an Acquisition Transaction, furnish information concerning its business, properties or assets ) to the corporation, partnership, person or other entity or group (a "Potential Acquiror") making such proposal for an Acquisition Transaction and participate in negotiations with extent the Potential Acquiror if (x) the Company's Board of DirectorsDirectors of the Company determines in good faith, after consultation with one or more its financial advisor and after considering the written advice of its independent financial advisorsoutside counsel, is of the reasonable belief that such Potential Acquiror has disclosure would be inconsistent with the financial wherewithal to consummate fiduciary duties of such an Acquisition Transaction, (y) the Company's Board of Directors reasonably determines, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's Board of Directors determines in good faith that it is necessary to so furnish information and negotiate in order to comply with its fiduciary duty to stockholders of the Company. In the event the Company shall determine to provide any information as described above or shall receive any offer of the type referred to in this Section 4.1 or shall receive or become aware of any other proposal to acquire a substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or to acquire a substantial amount of capital stock of the Company, it shall promptly inform Parent orally as to the fact that information is to be provided and shall furnish to Parent the identity of the recipient of such information and/or the proponent of any such offer or proposal and a description of the material terms thereof. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transaction)under applicable law.

Acquisition Transactions. (a) After Promptly following the date hereof and prior to the Effective Time or earlier termination execution of this Agreement, unless Parent CSFC shall otherwise agree in writing, the Company shall not, shall not permit any of its subsidiaries totake affirmative steps necessary to discontinue, and shall thereafter not authorize or permit any officer, director or employee or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in Section 4.1(b), (i) initiate, solicit, negotiate, encourage, solicit or provide confidential knowingly encourage (including by way of furnishing any information to facilitate any proposal or offer to acquire all or any substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 25% or more of the capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (such transactions being referred to herein as "Acquisition Transactions"assistance), (ii) enter into any agreement with respect to any Acquisition Transaction or give any approval of the type referred to in Section 4.1(b) with respect to 20 Agreement and Plan of Merger any Acquisition Transaction or (iii) participate in any discussions regarding, or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, or negotiate with any person in furtherance of such inquiries or to obtain an Acquisition Proposal, or agree to endorse, or endorse, any Acquisition Proposal, or authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by CSFC or any of the CSFC Subsidiaries to take any such action, and CSFC shall promptly notify LPSB orally, and confirm in writing all of the relevant details relating to all inquiries and proposals which CSFC or a CSFC Subsidiary may receive relating to any Acquisition Transaction. Notwithstanding of such matters; provided, however, that nothing contained in this Section 6.2 shall prohibit the immediately preceding sentence, the Company and Board of Directors of CSFC from: (A) complying with its subsidiaries may, prior to the Company Stockholder Approval disclosure obligations under federal or state law; (as defined in Section 4.7), B) providing information in response to any a request therefore by a Person who has made an unsolicited proposal for an bona fide written Acquisition Transaction, furnish information concerning its business, properties or assets to Proposal if the corporation, partnership, person or other entity or group (a "Potential Acquiror") making such proposal for an Acquisition Transaction and participate in negotiations with the Potential Acquiror if (x) the Company's CSFC Board of Directors, after consultation Directors receives from the Person so requesting such information an executed confidentiality agreement substantially similar to that entered into with one LPSB; (C) engaging in any negotiations or more of its independent financial advisors, is of the reasonable belief that such Potential Acquiror discussions with any Person who has the financial wherewithal to consummate made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition TransactionProposal to the shareholders of CSFC, if and only to the extent that, in each such case referred to in clause (B), (yC) or (D) above, (i) the Company's Board of Directors reasonably determines, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's CSFC Board of Directors determines in good faith (after consultation with outside legal counsel) that it is necessary to so furnish information and negotiate such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law, and (ii) the CSFC Board of Directors determines in good faith (after consultation with its fiduciary duty financial advisor) that such Acquisition Proposal, if accepted, is at least as reasonably likely to stockholders be consummated, taking into account all legal, financial and regulatory aspects of the Companyproposal and the Person making the proposal and, if consummated, would result in a transaction more favorable to the CSFC shareholders from a financial point of view than the Merger. In An Acquisition Proposal which is received and considered by CSFC in compliance with this section 6.2 and which meets the event the Company shall determine to provide any information as described above or shall receive any offer requirements set forth in clause (D) of the type preceding sentence is herein referred to in this Section 4.1 or shall receive or become aware of any other proposal to acquire a substantial part of the business and properties of the Company and its subsidiaries, taken as a whole“Superior Proposal.” CSFC agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. CSFC agrees that it will notify LPSB immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or to acquire a substantial amount of capital stock of the Company, it shall promptly inform Parent orally as to the fact that information is any such discussions or negotiations are sought to be provided initiated or continued with CSFC or any of its representatives after the date hereof, and shall furnish to Parent the identity of the recipient of person making such information and/or inquiry, proposal or offer and the proponent substance thereof and will keep LPSB informed of any such offer or proposal and a description of material developments with respect thereto immediately upon the material terms occurrence thereof. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transaction).

Acquisition Transactions. (ai) After the date hereof and prior to the Merger 2 Effective Time or earlier termination of this Agreement, unless Parent shall otherwise agree in writing, the Company Sellers shall not, and shall not permit any of its subsidiaries their Subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Sellers shall, and shall not authorize or permit cause each of their Subsidiaries to, cause any officer, director or employee of, or any attorney, accountant, 37 investment banker, attorney, accountant financial advisor or other advisor or representative of the Company or any of its subsidiaries toagent retained by them, directly or indirectly, except as otherwise expressly permitted in this Section 4.1(a) or in Section 4.1(b), (i) not to initiate, solicit, negotiate, encourage, encourage or provide non-public or confidential information to facilitate facilitate, any proposal or offer to acquire all or any substantial part of the business and properties of the Company and its subsidiaries, taken as a whole, either Seller or beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) any of 25% their Subsidiaries or more of the any capital stock of the Companyeither Seller or any of their Subsidiaries, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition TransactionsTransaction"), . (ii) enter into any agreement with respect to any Acquisition Transaction or give any approval of the type referred to in Section 4.1(b) with respect to 20 Agreement and Plan of Merger any Acquisition Transaction or (iii) participate in any discussions regarding, 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 Acquisition Transaction. Notwithstanding the immediately preceding sentenceprovisions of subsection (i) above, the Company and its subsidiaries (A) either Seller may, prior to the Company Stockholder Approval (as defined in Section 4.7), in response to any an unsolicited written proposal for an or unsolicited written indication of interest with respect to a potential or proposed Acquisition TransactionTransaction ("Acquisition Proposal"), furnish information concerning its business, properties or assets (subject to the execution of a confidentiality agreement and standstill agreement in substantially the form executed by Parent) confidential or non-public information to a financially capable corporation, partnership, person or other entity or group (a "Potential AcquirorAcquirer") making such proposal for an Acquisition Transaction and participate in negotiations negotiate with the Potential Acquiror if (x) the Company's Board of Directors, after consultation with one or more of its independent financial advisors, is of the reasonable belief that such Potential Acquiror has Acquirer if the financial wherewithal to consummate such an Acquisition Transaction, (y) the Company's Board of Directors reasonably determinesof such Seller after consulting with its outside legal counsel, after receiving advice from the Company's financial advisor, that such Potential Acquiror has submitted a proposal for an Acquisition Transaction that involves consideration to the Company's stockholders and other terms that taken as a whole are superior to the Merger and (z) based upon advice of counsel to such effect, the Company's Board of Directors determines in good faith that it is necessary the failure to so furnish provide such confidential or non-public information and to or negotiate in order to comply with such Potential Acquirer would constitute a breach of its fiduciary duty to its stockholders and (B) such Seller's Board of Directors may take and disclose to its stockholders a position contemplated by Rule 14e-2 under the CompanyExchange Act. In the event the Company It is understood and agreed that negotiations conducted in accordance with this subsection (ii) shall determine to provide any information as described above or shall receive any offer not constitute a violation of the type referred to in subsection (i) of this Section 4.1 or 7(c). (iii) The Sellers shall receive or become aware immediately notify Parent after receipt of any other proposal Acquisition Proposal or any request for nonpublic information relating to acquire a substantial part Seller or its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of a Seller or any Subsidiary by any person or entity that informs the business and properties Board of the Company and its subsidiaries, taken as Directors of a wholeSeller or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to acquire a substantial amount of capital stock of the Company, it Parent shall promptly inform Parent be made orally as to the fact that information is to be provided and in writing and shall furnish to Parent indicate in reasonable detail the identity of the recipient offeror and the terms and conditions of such proposal, inquiry or contact. Seller shall immediately provide Parent a copy of all information and/or the proponent provided to a third party. (iv) Each Party (i) acknowledges that a breach of any of its covenants contained in this Section 7(c) will result in irreparable harm to the other Party which will not be compensable in money damages, and (ii) agrees that such offer or proposal covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a description remedy properly available to the other Party for a breach of such covenant. In any event, if a Seller enters into an Acquisition Transaction, it will immediately pay to Parent the material terms thereofsums described in Section 10(b) below. The Company will keep Parent fully informed of the status and material details of any proposed Acquisition Transaction or other transaction (including any material amendments or material proposed amendments of any such proposed Acquisition Transaction or other transactiond).