Common use of Solicitation Procedures Clause in Contracts

Solicitation Procedures. (i) Unless this Agreement has been terminated in accordance with its terms, neither Seller nor any of its Subsidiaries nor any Affiliate of any of them will take, nor will Seller permit any of them to take (nor will Seller, any of its Subsidiaries or any Affiliate of any of them authorize or permit any investment banker, financial advisor, attorney, accountant or other Person retained by or acting for or on behalf of Seller, any of its Subsidiaries or any such Affiliate to take), directly or indirectly, any action to (A) initiate, assist, solicit, negotiate, or encourage any offer, proposal or inquiry from any Third Party that constitutes, or would reasonably be expected to lead to, an Alternative Bid for the Acquired Assets or any transaction involving the Acquired Assets, (B) engage in any Business Combination with respect to Seller or any of its Subsidiaries, (C) reach any agreement or understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any Alternative Bid or Business Combination with Seller or any of its Subsidiaries or (D) furnish or cause to be furnished any information with respect to Seller or any of its Subsidiaries to any Third Party except in the ordinary course of business (other than to Purchaser and its Affiliates). (ii) Notwithstanding anything to the contrary set forth in Section 6.7(d)(i) above, Seller may furnish non-public information with respect to Seller and the Assets to any Qualified Bidder and elicit information from a Qualified Bidder concerning its Qualified Alternative Bid, if and only if, before doing so: (1) Seller enters into with such Qualified Bidder a confidentiality agreement in reasonably customary form on terms not more favorable to such Qualified Bidder than the terms contained in the Confidentiality Agreement and Seller shall have previously provided such non-public information to Purchaser, and (2) the Board of Directors of Seller, after consultation with and having received the advice of independent legal counsel, determines in good faith that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law. (iii) Notwithstanding anything to the contrary set forth in Section 6.7(d)(i) above, Seller may furnish non-public information with respect to Seller and the Business to any Third Party and enter into discussions or negotiations with, any Third Party in connection with an unsolicited bona fide written proposal from such Third Party for a Business Combination with respect to Seller or any of its Subsidiaries, if before doing so: (1) Seller enters into with such Third Party a confidentiality agreement in reasonably customary form on terms not more favorable to such Third Party than the terms contained in the Confidentiality Agreement and Seller shall have previously provided such non-public information to Purchaser; (2) the Board of Directors of Seller, after consultation with independent financial advisors, reasonably determines in good faith that the Business Combination, if consummated, is reasonably likely to result in a transaction more favorable to Seller than the Transactions; (3) the Board of Directors of Seller reasonably determines in its good faith judgment, after consultation with independent financial advisors, that such Third Party has the financial ability to consummate such proposal; and (4) the Board of Directors of Seller, after consultation with and having received the advice of independent legal counsel, determines in good faith that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law. (iv) Seller shall immediately notify Purchaser orally and in writing of all inquiries, proposals, or requests for information received from any Third Party, and the material terms and conditions of such inquiry, proposal or request, and the identity of the person making such inquiry, proposal, or request. Seller shall keep Purchaser informed of the status (including amendments or proposed amendments) of any such inquiry, proposal or request with respect to a Alternative Bid or Business Combination, and upon the request of Purchaser shall identify and furnish to Purchaser all information provided in response to such inquiry, proposal or request. Within twenty-four hours of receipt of any expression of interest, bid proposal or similar communication from any other party, Seller shall deliver a copy of such document or a written summary of any oral communication to Purchaser.