|
|
 | | | |
- close
- close
- close
- close
| |||||||||
This excerpt taken from the LUX 6-K filed Jun 25, 2007. Section 5.07. No Solicitation.(a) The Company shall, and shall cause its Subsidiaries, the Company Representatives and its directors to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company also will promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal and in connection with which discussions are taking place, or have taken place during the twelve (12) month period preceding the date of this Agreement with respect to an Acquisition Proposal, to return or destroy all confidential information heretofore furnished to such person by the Company or on the Company’s behalf. (b) The Company agrees that, prior to the Effective Time, it shall not, directly or indirectly, and shall not permit or cause any of its Subsidiaries to, nor shall it authorize or permit any Company Representatives or any of its directors to, directly or indirectly, (i) initiate, solicit or knowingly encourage (including by way of furnishing non-public information) the making of any proposal or offer concerning an Acquisition Proposal or41 (ii) engage in any discussions or negotiations concerning, or provide any non-public information or data to any person relating to, an Acquisition Proposal, whether made before or after the date of this Agreement unless, after the date hereof, (A) the Company receives a bona fide written proposal not initiated, solicited or knowingly encouraged in violation of this Agreement that constitutes an Acquisition Proposal, (B) the Board in good faith determines, after consultation with its outside legal counsel and independent financial advisors, that such Acquisition Proposal may reasonably be expected to result in a Superior Acquisition Proposal, (C) the Company (x) shall have provided at least 48 hours advance written notice to Parent that it intends to take such action, which shall also set forth the identity of the person making the Acquisition Proposal, all of the terms and conditions of such Acquisition Proposal and delivery of complete copies of all documents reflecting or related to the Acquisition Proposal, and (y) shall have received from such person an executed customary confidentiality agreement containing terms no less stringent in all material respects, than those terms contained in the Confidentiality Agreements, including, in any event, a prohibition on such person from purchasing or otherwise acquiring any capital stock of the Company while such person is engaged in negotiations with the Company, provided that the Company shall promptly notify Parent if and when such prohibition is no longer in effect; provided that such confidentiality agreement shall not contain any exclusivity provision or other term that would prevent the Company from consummating the transactions contemplated by this Agreement, and (D) the Company shall have made available to Parent (or Parent’s counsel pursuant to a joint defense agreement) the same nonpublic information being furnished to such person. The Company shall promptly notify Parent of any material amendments or revisions to any such Acquisition Proposal.(c) The Board (or any committee thereof) shall not (i) except as permitted by this Section 5.07, withdraw, modify or change, or propose publicly to withdraw, modify or change, in a manner adverse to Parent, the Company Board Recommendation (as defined in Section 5.08) (a “Change of Board Recommendation”), (ii) except as permitted by this Section 5.07, approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause the Company or any of its Subsidiaries to enter into or approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Acquisition Proposal (an “Acquisition Agreement”), unless (with respect to taking any action described in (i), (ii) or (iii)), prior to the date on which the Required Shareholder Approval has been obtained, (A) subject to clause (B) below, the Board has received an Acquisition Proposal theretofore described to Parent as required by Section 5.07(b) which it has determined in good faith (after having consulted with outside legal counsel and its independent financial advisors) is a Superior Acquisition Proposal and has determined that the failure of the Board to terminate this Agreement or withdraw, modify or change the Company Board Recommendation would be inconsistent with the fiduciary duties of the directors and (B) the Company has notified Parent in writing of all of the terms and conditions of the Superior Acquisition Proposal together with delivery to Parent of complete copies of all documents reflecting or related to such Superior Acquisition Proposal and of the determinations described in clause (A) above and of its intent to take such action, and has taken into account any revised proposal made by Parent to the Company (a “Revised Parent Proposal”) within five (5) business days after Parent’s receipt of such notice and again has42 determined in good faith after consultation with its outside legal counsel and independent financial advisors that such Acquisition Proposal (as the same may have been modified or amended) remains a Superior Acquisition Proposal; provided, however, that if a Revised Parent Proposal has been made, and the Acquisition Proposal has been modified or amended after the Revised Parent Proposal was made, then the Company shall promptly notify Parent in writing of all of the terms and conditions of such modification or amendment together with delivery of complete copies of all documents reflecting or related to such modification or amendment, and any such modification or amendment to such Acquisition Proposal shall be deemed to be a new Acquisition Proposal for purposes of re-starting, as of the date of Parent’s receipt of such notice, the five (5) business day period described above in this clause (B). Notwithstanding the foregoing, if the Board (or any committee thereof) makes a Change of Board Recommendation that is either (a) made in connection with a Superior Acquisition Proposal that is an Acquisition Proposal described in clause (ii) of the definition of Acquisition Proposal or (b) made pursuant to Section 5.07(e) (either such Change of Board Recommendation described in clauses (a) or (b), a “Specified Change of Board Recommendation”), then, to the extent permitted under the WBCA (including pursuant to subsection (2)(a) of Section 23B.11.030 of the WBCA), the Company shall take all actions as necessary to call, give notice of, convene and hold the Special Meeting so as to permit the Special Meeting to be held in compliance with Section 5.09 without a recommendation of the Board.(d) The term “Acquisition Proposal” shall mean any offer or proposal (whether or not in writing and whether or not delivered to the Company’s shareholders generally), from any person to acquire, in a single transaction or series of transactions, by merger, tender offer, stock acquisition, asset acquisition, consolidation, liquidation, business combination or otherwise (i) at least 50% of any class of equity securities of the Company, or (ii) assets of the Company and/or one or more of its Subsidiaries which in the aggregate constitutes 35% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The term “Superior Acquisition Proposal” shall mean any bona fide unsolicited written Acquisition Proposal on terms more favorable to the holders of Shares than the transactions contemplated by this Agreement, taking into account all of the terms and conditions of such proposal and this Agreement (including any proposal by Parent to amend the terms of the transactions contemplated by this Agreement), as well as the anticipated timing, conditions and prospects for completion of such Acquisition Proposal; provided further, that if any negotiations with a third party related to an Acquisition Proposal that are not initiated, solicited or knowingly encouraged in violation of this Section 5.07 in compliance with subsection (b) above result in a revised bona fide Acquisition Proposal from such third party being made to the Company, then such revised Acquisition Proposal shall also be considered a bona fide Acquisition Proposal not initiated, solicited or knowingly encouraged in violation of this Section 5.07.(e) Nothing in this Agreement shall prohibit or restrict the Board, in circumstances not involving an Acquisition Proposal, from effecting a Change of Board Recommendation to the extent that the Board determines in good faith (after consultation with outside legal counsel) that such action is necessary under applicable law in order for the directors to comply43 with their fiduciary duties to the Company’s shareholders. The Company shall give Parent and Merger Sub written notice of any such action taken by the Board not later than the business day next succeeding the day on which such action is taken, setting forth in reasonable detail the action taken and the basis therefore.(f) Nothing contained in this Section 5.07 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to the Company’s shareholders if, in the good faith judgment of the Board, after consultation with its outside counsel, failure so to disclose would be inconsistent with its fiduciary duties under applicable law or such disclosure would be necessary to comply with the Company’s obligations under federal securities laws or the rules of the NYSE; provided that any such disclosure made pursuant to clause (i) or (ii) (other than a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a Change of Board Recommendation unless the Board expressly reaffirms to the Company’s shareholders in such disclosure the Company Board Recommendation. |
| |||||||
