Common use of Target Action Clause in Contracts

Target Action. (i) At a meeting duly called and held in compliance with Delaware Law, (A) the Target Independent Committee has unanimously adopted a resolution approving and consenting to the Agreement, the Stockholder Agreements, the Employment Agreement Amendments (collectively, the "Transaction Documents") and the transactions contemplated hereby, including, without limitation, the terms of each of the Offer and the Merger (the "Transactions") and recommended that the Board of Directors of Target approve the Transaction Documents and the Transactions and (B) the Board of Directors of Target has unanimously adopted a resolution (1) approving the Transaction Documents and the Transactions, based on a determination that the Transaction Documents and the Transactions, including the Offer and the Merger, are advisable, fair to and in the best interests of, the Target stockholders, (2) approving and adopting the Transaction Documents and the Transactions and (3) recommending approval and adoption of this Agreement and the Merger by the stockholders of Target if required by applicable Law; and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney ("Target Banker") has delivered simultaneously herewith to the Target Independent Committee an opinion to the effect that, as of the date of this Agreement, the consideration to be received by the holders of Shares (other than the Acquiror and its Affiliates) pursuant to the Offer and the Merger is fair to such holders from a financial point of view. Target has been authorized by Target Banker, subject to prior approval by Target Banker, to include such opinion (or references thereto) in the Offer Documents (as defined in paragraph (b) of this Section 1.02) and in the Schedule 14D-9 and the documents referred to in Section 6.01. Target hereby consents to the inclusion in the Offer Documents of the recommendation of Target's Board of Directors and the Target Independent Committee described above. (b) As soon as reasonably practicable on the date of commencement of the Offer, Target shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing the recommendation of Target's Board of Directors and the Target Independent Committee described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any other applicable federal securities laws. Target, Acquiror and Acquisition Sub agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, and Target further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Acquiror, Acquisition Sub and their counsel shall be given an opportunity to review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. Target will provide Acquiror and Acquisition Sub and their counsel with a copy of any written comments or telephonic notification of any verbal comments Target may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt thereof and will provide Acquiror and Acquisition Sub and their counsel with a copy of any written responses and telephonic notification of any verbal response of Target or its counsel. (c) Target shall promptly furnish Acquisition Sub with mailing labels containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of the most recent date reasonably practicable, and of those persons becoming record holders subsequent to such date. Target shall furnish Acquisition Sub with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance as Acquiror, Acquisition Sub or their agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Acquiror and Acquisition Sub shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, shall deliver promptly, upon request, to Target all copies of such information then in their possession or under their control.

Target Action. (a) The Target hereby approves of and consents to the Offer and represents that (i) At the Target's Board of Directors, at a meeting duly called and held in compliance with Delaware Lawon May 1, 1998, has (A) the Target Independent Committee has unanimously adopted a resolution approving and consenting to the Agreement, the Stockholder Agreements, the Employment determined that this Agreement Amendments (collectively, the "Transaction Documents") and the transactions contemplated hereby, including, without limitation, the terms of each of the Offer and the Merger (the "Transactions") and recommended that the Board of Directors of Target approve the Transaction Documents and the Transactions and (B) the Board of Directors of Target has unanimously adopted a resolution (1) approving the Transaction Documents and the Transactions, based on a determination that the Transaction Documents and the Transactions, including the Offer and the Merger), are advisable, fair to and in the best interests of, of the Target stockholdersholders of Shares (other than Acquiror and its subsidiaries), (2B) approving and adopting the Transaction Documents approved this Agreement and the Transactions and (3C) recommending approval resolved to recommend, subject to the conditions set forth herein, that the shareholders of the Target accept the Offer and adoption of approve this Agreement and the Merger by the stockholders of Target if required by applicable LawTransactions; and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Financo, Inc. ("Target Banker") has delivered simultaneously herewith to the Target Independent Committee an Target's Board of Directors a written opinion to the effect that, as of the date of this Agreement, that the consideration to be received by the holders of Shares (other than the Acquiror and its Affiliates) pursuant to each of the Offer and the Merger is fair to such holders from a financial point of view. The Target has been authorized by Target Banker, subject to prior approval review by Target Banker, to include such fairness opinion (or references thereto) in the Offer Documents and in the Schedule 14D-9 (as defined in paragraph (b) of this Section 1.02) and in the Schedule 14D-9 and the documents Proxy Statement referred to in Section 6.016.02. Subject to the fiduciary duties of the Target's Board of Directors under applicable law, the Target hereby consents to the inclusion in the Offer Documents of the recommendation of the Target's Board of Directors and the Target Independent Committee described above. (b) As soon as reasonably practicable on the date of commencement of the Offer, the Target shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing containing, subject only to the recommendation fiduciary duties of the Target's Board of Directors and under applicable law, the Target Independent Committee recommendation of the Target's Board of Directors described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any other applicable federal securities laws. The Target, Acquiror and Acquisition Acquiror Sub agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, and the Target further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Acquiror, Acquisition Acquiror Sub and their counsel shall be given an opportunity to review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. The Target will provide Acquiror and Acquisition Acquiror Sub and their counsel with a copy of any written comments or telephonic notification of any verbal comments the Target may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt thereof and will provide Acquiror and Acquisition Acquiror Sub and their counsel with a copy of any written responses and telephonic notification of any verbal response of the Target or its counsel. (c) The Target shall promptly furnish Acquisition Acquiror Sub with mailing labels containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of the most recent date reasonably practicable, and of those persons becoming record holders subsequent to such date. The Target shall furnish Acquisition Acquiror Sub with such additional information, including, without limitation, updated listings and computer files of stockholdersshareholders, mailing labels and security position listings, and such other assistance as Acquiror, Acquisition Acquiror Sub or their agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Acquiror and Acquisition Acquiror Sub shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement shall be terminatedterminated in accordance with Section 8.01, shall deliver promptly, upon request, promptly to the Target all copies of such information then in their possession or under their controland shall certify in writing to the Target its compliance with this Section 1.02(c).