COMPANY DETERMINES REASONABLY AND IN GOOD FAITH CONSTITUTES OR PRESENTS A
REASONABLE LIKELIHOOD OF RESULTING IN A SUPERIOR PROPOSAL (AS DEFINED HEREIN),
IF, AND ONLY TO THE EXTENT THAT PRIOR TO TAKING SUCH ACTION (OTHER THAN THE
NEGOTIATION OF THE CONFIDENTIALITY AGREEMENT REFERRED TO IN THE FOLLOWING CLAUSE
(Y) PRIOR TO THE DISCLOSURE OF ANY COMPANY INFORMATION) THE COMPANY (X)
40
delivers to Parent and Purchaser the notice required pursuant to Section 6.1(c)
stating that it is taking such action and (y) receives from such person or group
an executed confidentiality agreement that is not, in any material respect, less
restrictive as to such person or entity than the Confidentiality Agreement and
which, in any event, contains customary confidentiality and standstill
restrictions and shall not contain any exclusivity provisions which would
prohibit the Company from complying with its obligations under this Section 6.1
or otherwise under this Agreement.
Without limiting the foregoing, it is
understood that any violation of the restrictions set forth in this Section 6.1
by any officer, director, employee or affiliate of the Company or any of its
subsidiaries or any investment banker, attorney, accountant or other advisor,
agent or representative of the Company or any of its subsidiaries, whether or
not such person is purporting to act on behalf of the Company or any of its
subsidiaries or otherwise, shall be deemed to be a breach of this Section 6.1 by
the Company.
(B)
NEITHER THE BOARD OF DIRECTORS OF THE
COMPANY NOR ANY COMMITTEE THEREOF SHALL (I) WITHDRAW, MODIFY IN A MANNER ADVERSE
TO PARENT OR PURCHASER OR FAIL TO MAKE, OR PROPOSE TO WITHDRAW, MODIFY IN A
MANNER ADVERSE TO PARENT OR PURCHASER OR FAIL TO MAKE ITS APPROVAL OR
RECOMMENDATION OF THE OFFER OR THE MERGER OR OF THE TENDER AND OPTION AGREEMENT,
THIS AGREEMENT AND THE OTHER TRANSACTIONS, (II) EXCEPT AS PERMITTED BY SECTION
6.1(E), APPROVE OR RECOMMEND, OR PROPOSE TO APPROVE OR RECOMMEND, ANY
ACQUISITION PROPOSAL, (III) TAKE ANY ACTION NOT PREVIOUSLY TAKEN TO RENDER THE
PROVISIONS OF ANY ANTI-TAKEOVER STATUTE, RULE OR REGULATION (INCLUDING SECTIONS
2538 THROUGH 2588, INCLUSIVE, OF THE PBCL) INAPPLICABLE TO ANY PERSON (OTHER
THAN PARENT, PURCHASER OR THEIR AFFILIATES) OR GROUP OR TO ANY ACQUISITION
PROPOSAL, OR (IV) CAUSE THE COMPANY TO ACCEPT SUCH ACQUISITION PROPOSAL AND/OR
ENTER INTO ANY LETTER OF INTENT, AGREEMENT IN PRINCIPLE, ACQUISITION AGREEMENT
OR OTHER SIMILAR AGREEMENT (EACH, AN "ACQUISITION AGREEMENT") RELATED TO ANY
ACQUISITION PROPOSAL.
(C)
IN ADDITION TO THE OBLIGATIONS OF THE
COMPANY SET FORTH IN PARAGRAPHS (A) AND (B) ABOVE, THE COMPANY SHALL PROMPTLY
(AND IN ANY EVENT, WITHIN ONE BUSINESS DAY) ADVISE PARENT ORALLY AND IN WRITING
OF ANY REQUEST FOR INFORMATION OR THE SUBMISSION OR RECEIPT AFTER THE DATE OF
THIS AGREEMENT OF ANY ACQUISITION PROPOSAL, OR ANY INQUIRY WITH RESPECT TO OR
WHICH COULD REASONABLY BE EXPECTED TO LEAD TO ANY ACQUISITION PROPOSAL, THE
MATERIAL TERMS AND CONDITIONS OF SUCH REQUEST, ACQUISITION PROPOSAL OR INQUIRY,
AND THE IDENTITY OF THE PERSON MAKING ANY SUCH