THE SOLICITATION OF PROXIES FOR THE COMPANY STOCKHOLDERS MEETING
WHICH HAS BECOME FALSE OR MISLEADING.
IF AT ANY TIME PRIOR TO THE EFFECTIVE
TIME ANY EVENT OR INFORMATION SHOULD BE DISCOVERED BY PARENT OR MERGER SUB WHICH
SHOULD BE SET FORTH IN AN AMENDMENT TO THE REGISTRATION STATEMENT OR A
SUPPLEMENT TO THE PROXY
24
STATEMENT/PROSPECTUS, PARENT OR MERGER SUB WILL PROMPTLY INFORM THE COMPANY.
NOTWITHSTANDING THE FOREGOING, PARENT AND MERGER SUB MAKE NO REPRESENTATION,
WARRANTY OR COVENANT WITH RESPECT TO ANY INFORMATION SUPPLIED BY THE COMPANY
WHICH IS CONTAINED IN ANY OF THE FOREGOING DOCUMENTS.
ARTICLE V
COVENANTS AND AGREEMENTS
5.1.
CONDUCT OF BUSINESS OF THE COMPANY PENDING THE
MERGER.
EXCEPT AS CONTEMPLATED BY THIS AGREEMENT OR AS EXPRESSLY AGREED TO IN
WRITING BY PARENT, DURING THE PERIOD FROM THE DATE OF THIS AGREEMENT TO THE
EARLIER OF (I) THE TERMINATION OF THIS AGREEMENT OR (II) THE EFFECTIVE TIME,
EACH OF THE COMPANY AND ITS SUBSIDIARIES WILL CONDUCT THEIR RESPECTIVE
OPERATIONS ACCORDING TO ITS ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST
PRACTICE, AND WILL USE COMMERCIALLY REASONABLE BEST EFFORTS CONSISTENT WITH PAST
PRACTICE AND POLICIES TO PRESERVE INTACT ITS BUSINESS ORGANIZATION, TO KEEP
AVAILABLE THE SERVICES OF ITS OFFICERS AND EMPLOYEES AND TO MAINTAIN
SATISFACTORY RELATIONSHIPS WITH SUPPLIERS, DISTRIBUTORS, CUSTOMERS AND OTHERS
HAVING BUSINESS RELATIONSHIPS WITH IT AND WILL TAKE NO ACTION WHICH WOULD
ADVERSELY AFFECT THE ABILITY OF THE PARTIES TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, OR THE TIMING THEREOF.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, PRIOR TO THE EFFECTIVE TIME, THE COMPANY WILL NOT NOR WILL IT PERMIT
ANY OF ITS SUBSIDIARIES TO, WITHOUT THE PRIOR WRITTEN CONSENT OF PARENT:
(A)
AMEND ANY OF ITS CHARTER DOCUMENTS OR
GOVERNING DOCUMENTS;
(B)
AUTHORIZE FOR ISSUANCE, ISSUE, SELL,
DELIVER, GRANT ANY OPTIONS, WARRANTS, STOCK APPRECIATION RIGHTS, OR STOCK
ISSUANCE RIGHTS FOR, OR OTHERWISE AGREE OR COMMIT TO ISSUE, SELL, DELIVER,
PLEDGE, DISPOSE OF OR OTHERWISE ENCUMBER ANY SHARES OF ANY CLASS OF ITS CAPITAL
STOCK OR ANY SECURITIES CONVERTIBLE INTO SHARES OF ANY CLASS OF ITS CAPITAL
STOCK, EXCEPT (I) PURSUANT TO AND IN ACCORDANCE WITH THE TERMS OF COMPANY
OPTIONS OUTSTANDING ON THE COMPANY MEASUREMENT DATE OR GRANTED PURSUANT TO
CLAUSE (II) BELOW, OR (II)
THE GRANT OF COMPANY OPTIONS CONSISTENT WITH PAST
PRACTICES TO NEW EMPLOYEES, WHICH COMPANY OPTIONS WILL REPRESENT THE RIGHT TO
ACQUIRE NO MORE THAN 15,000 SHARES OF COMPANY COMMON STOCK PER NEW EMPLOYEE;
PROVIDED HOWEVER, THAT THE CURRENT FORM OF AGREEMENT UNDER THE COMPANY STOCK
OPTION PLANS SHALL BE AMENDED TO NO LONGER INCLUDE ANY PROVISIONS PROVIDING FOR
ACCELERATION OF VESTING UPON A CHANGE OF CONTROL, AND ANY OTHER FORM USED BY THE
COMPANY SHALL BE IN A FORM REASONABLY ACCEPTABLE TO PARENT;
(C)
SUBDIVIDE, CANCEL, CONSOLIDATE OR
RECLASSIFY ANY SHARES OF ITS CAPITAL STOCK, ISSUE OR AUTHORIZE THE ISSUANCE OF
ANY OTHER SECURITIES IN RESPECT OF, IN LIEU OF OR IN SUBSTITUTION FOR SHARES OF
ITS CAPITAL STOCK, DECLARE,