SEC Filings
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SC 13D/A | |||
GLAZER MALCOLM I filed this Form SC 13D/A on 09/18/2006 | |||
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Table of Contents
lapse of time or both, would constitute a default
or breach on the part of the Purchaser or, to the knowledge of the Purchaser, Ableco Finance LLC,
under the Cerberus Commitment Letter. The Purchaser has no reason to believe that any of the
conditions to the Financing contemplated by the Cerberus Commitment Letter will not be satisfied or
that the Financing will not be made available to Purchaser on the Closing Date.
SECTION 6.11 No Resale. The Purchaser is acquiring the Shares, and if it
acquires the Call Option Shares it will be acquiring them, for its own account and not with a view
to, or in connection with, or with any present intention of, any resale or other disposition
thereof.
SECTION 6.12 No Ownership of Seller Common Stock. Except for Avram A. Glazer and
Leonard DiSalvo, neither the Purchaser, nor to the Purchasers knowledge, any of its directors or
executive officers beneficially owned any shares of the Seller Common Stock, as of the date hereof.
ARTICLE 7
COVENANTS
SECTION 7.1 Acquisition Proposals.
(a) From the date hereof until the earlier of the Closing or the termination of the Agreement
pursuant to Article 10, the Seller shall not, nor shall it authorize or permit any of its
Subsidiaries or any of their respective Affiliates or Representatives to, directly or indirectly
(i) solicit, initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding, or furnish
to any Person any information with respect to, 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 Proposal; provided, however, that this Section 7.1(a) shall not
prohibit the Seller from entering into a confidentiality agreement or discussions or negotiations
with, or disclosing the terms of this Agreement, including the Purchase Price, to any Person in
response to a bona fide unsolicited written Acquisition Proposal submitted by such Person (and not
withdrawn), and, upon the request of the Seller, the Purchaser shall, and it shall cause its
officers and Representatives to, cooperate and respond accurately, promptly and fully to any
inquiries or requests for documents by such Person, if (A) none of the Seller, any of its
Subsidiaries or any of their respective Affiliates or Representatives shall have violated any of
the restrictions set forth in this Section 7.1, (B) the Sellers board of directors determines in
good faith (after consultation with its outside legal counsel), that there is a substantial
likelihood the failure to take such action would be inconsistent with its fiduciary duties under
Applicable Law, and (C) (1) at least two business days prior to furnishing (or requesting the
Purchaser to furnish) any such information to, or entering into discussions or negotiations with,
such Person, the Seller gives the Purchaser written notice of the identity of such Person and of
the Sellers intention to furnish information (or request Purchaser to furnish) to, or enter into
discussions or negotiations with, such Person, and (2) the Purchaser receives from such Person an
executed confidentiality agreement containing terms no less favorable to the Purchaser than the
least favorable confidentiality
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