IF PRIOR TO THE EXPIRY OF
THE OFFER, A SUPERIOR PROPOSAL IS RECEIVED BY, OR OFFERED OR MADE TO, THE
COMPANY OR ANY MEMBER OF THE BOARD OF DIRECTORS, SENIOR EXECUTIVE OR THE
FINANCIAL ADVISOR OR ANY AGENT OR REPRESENTATIVE OF THE COMPANY OR SHAREHOLDER,
AND (I) IN THE DETERMINATION OF THE BOARD OF DIRECTORS ACTING IN GOOD FAITH
(AFTER RECEIVING THE ADVICE OF ITS FINANCIAL ADVISOR AND OUTSIDE LEGAL
ADVISORS), TO REFRAIN FROM TAKING SUCH ACTION WOULD BE INCONSISTENT WITH THE
PERFORMANCE BY THE BOARD OF DIRECTORS OF ITS FIDUCIARY DUTIES UNDER APPLICABLE
LAW, (II) THIS AGREEMENT IS CONCURRENTLY TERMINATED PURSUANT TO SECTION 8.1(F)
OR 8.1(G), AND (III) THE COMPANY HAS PREVIOUSLY, OR CONCURRENTLY WILL HAVE, PAID
THE NON-COMPLETION FEE TO THE PARENT;
(B)
UPON RECEIPT BY THE COMPANY OF (I) ANY
NOTICE, PROPOSAL OR INQUIRY THAT THE BOARD OF DIRECTORS DETERMINES IN GOOD
FAITH, COULD REASONABLY BE EXPECTED TO LEAD TO, AN ALTERNATIVE TRANSACTION OR
ANY AMENDMENTS THERETO, OR ANY OTHER TRANSACTION THE CONSUMMATION OF WHICH WOULD
REASONABLY BE EXPECTED TO IMPEDE, INTERFERE WITH, PREVENT OR MATERIALLY DELAY
THE OFFER OR A SUBSEQUENT ACQUISITION TRANSACTION, OR (II) ANY REQUEST FOR
NON-PUBLIC INFORMATION RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES IN
CONNECTION WITH AN ALTERNATIVE TRANSACTION, OR (IV) ANY REQUEST FOR ACCESS TO
THE PROPERTIES, BOOKS OR RECORDS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES IN
CONNECTION WITH AN ALTERNATIVE TRANSACTION, THE COMPANY SHALL ADVISE THE OFFEROR
THEREOF BY TELEPHONE PROMPTLY, AND SHALL IN ANY EVENT NO LATER THAN 24 HOURS
THEREAFTER GIVE NOTICE TO THE OFFEROR THEREOF (INCLUDING IDENTIFYING THE PERSON
PROPOSING SUCH TRANSACTION AND THE TERMS AND CONDITIONS OF SUCH TRANSACTION AND
INCLUDE A COPY OF ANY DOCUMENTS RECEIVED BY THE COMPANY IN RESPECT OF SUCH
TRANSACTION).
PRIOR TO PROVIDING ANY NON-PUBLIC INFORMATION TO SUCH PERSON, THE
COMPANY WILL CONFIRM IN WRITING TO THE OFFEROR THAT IT HAS RECEIVED FROM SUCH
PERSON AN EXECUTED CONFIDENTIALITY AGREEMENT HAVING TERMS SUBSTANTIALLY SIMILAR
TO THE CONFIDENTIALITY AGREEMENT (OTHER THAN THE STANDSTILL CLAUSE RESTRICTING
SUCH PERSON FROM INITIATING AN ALTERNATIVE TRANSACTION AS PROVIDED FOR BY
PARAGRAPH 5 OF THE CONFIDENTIALITY AGREEMENT). THE COMPANY WILL PROVIDE OR MAKE
AVAILABLE TO THE OFFEROR COPIES OF ANY INFORMATION (IF NOT PREVIOUSLY PROVIDED
TO THE OFFEROR) PROVIDED TO ANY PERSON PROMPTLY FOLLOWING THE PROVISION OF SUCH
INFORMATION TO SUCH PERSON AND IN ANY EVENT WITHIN 24
20
HOURS.
THE COMPANY SHALL KEEP THE OFFEROR INFORMED ON A TIMELY BASIS OF THE
STATUS, INCLUDING ANY CHANGE TO THE MATERIAL TERMS OR TERMINATION OF DISCUSSIONS
OR NEGOTIATIONS, OF ANY SUCH ALTERNATIVE TRANSACTION, AND THE COMPANY SHALL
PROMPTLY PROVIDE THE OFFEROR COPIES OF ANY DOCUMENTS RELATING TO SUCH
ALTERNATIVE TRANSACTION FORTHWITH UPON RECEIPT THEREOF;
(C)
IF THE BOARD OF DIRECTORS DETERMINES THAT
THE ALTERNATIVE TRANSACTION CONSTITUTES A SUPERIOR PROPOSAL, THE COMPANY SHALL
GIVE THE OFFEROR AT LEAST THREE BUSINESS DAYS ADVANCE NOTICE OF ANY ACTION TO BE
TAKEN BY THE BOARD OF DIRECTORS TO WITHDRAW, MODIFY OR CHANGE ANY RECOMMENDATION
REGARDING THE OFFER OR