PROPOSAL (THE "SUPERIOR PROPOSAL
NOTICE") AND MAY THEN TAKE THE FOLLOWING ACTIONS (EITHER DIRECTLY OR THROUGH ITS
SUBSIDIARIES OR ANY OF THEIR REPRESENTATIVES) IF THE BOARD OF DIRECTORS OF
SELLERS DETERMINES, AFTER CONSULTATION WITH OUTSIDE COUNSEL, THAT TO DO SO IS
NECESSARY TO COMPLY WITH ITS FIDUCIARY OBLIGATIONS TO SELLERS' STOCKHOLDERS
UNDER APPLICABLE LAW:
(I)
FURNISH NONPUBLIC INFORMATION TO THE THIRD PARTY, PROVIDED, THAT
(A) PRIOR TO SO FURNISHING, SELLERS RECEIVE FROM THE THIRD PARTY AN EXECUTED
CONFIDENTIALITY AGREEMENT CONTAINING CUSTOMARY STANDSTILL PROVISIONS AND OTHER
TERMS AND CONDITIONS THAT ARE NO LESS RESTRICTIVE TO SUCH THIRD PARTY THAN THE
TERMS AND CONDITIONS OF THE CONFIDENTIALITY AGREEMENT, AND (B) ON THE DATE OF
THE PROVISION OF ANY NON-PUBLIC INFORMATION TO SUCH THIRD PARTY, SELLERS FURNISH
A COPY OF SUCH NON-PUBLIC INFORMATION OF SELLERS TO BUYER (TO THE EXTENT SUCH
NON-PUBLIC INFORMATION HAS NOT BEEN PREVIOUSLY SO FURNISHED); AND
(II)
PARTICIPATE OR ENGAGE IN ANY DISCUSSIONS OR NEGOTIATIONS WITH THE
THIRD PARTY WITH RESPECT TO THE ACQUISITION PROPOSAL.
(D)
FOR A PERIOD OF NOT LESS THAN THREE BUSINESS DAYS PRIOR TO SELLERS
ACCEPTING A DEFINITIVE SUPERIOR PROPOSAL, SELLERS SHALL, IF REQUESTED BY BUYER,
NEGOTIATE IN GOOD FAITH WITH
51
Buyer to revise this Agreement so that the Acquisition Proposal that constituted
a Superior Proposal no longer constitutes a Superior Proposal. The terms and
conditions of this Section 5.4(d) shall again apply to any subsequent Superior
Proposal after any changes made to this Agreement.
(E)
EXCEPT AS EXPRESSLY PERMITTED BY SECTION 5.4(F), NEITHER SELLERS
BOARD OF DIRECTORS NOR ANY COMMITTEE OF SELLERS BOARD OF DIRECTORS SHALL
(I) WITHDRAW OR MODIFY, OR PROPOSE PUBLICLY TO WITHDRAW OR MODIFY, IN A MANNER
ADVERSE TO BUYER, SELLERS' BOARD RECOMMENDATION OR (II) APPROVE OR RECOMMEND, OR
PROPOSE PUBLICLY TO APPROVE OR RECOMMEND, ANY ACQUISITION PROPOSAL (ANY ACTION
DESCRIBED IN THE FOREGOING (I) OR (II) BEING REFERRED TO AS A "CHANGE OF
RECOMMENDATION"). ANY SUCH CHANGE OF RECOMMENDATION OR THE ENTRY BY A SELLER
INTO ANY LETTER OF INTENT, AGREEMENT IN PRINCIPLE, ACQUISITION AGREEMENT,
UNDERSTANDING OR SIMILAR AGREEMENT CONTEMPLATING OR RELATING TO AN ACQUISITION
PROPOSAL SHALL NOT CHANGE THE APPROVAL OF SELLERS BOARD OF DIRECTORS FOR
PURPOSES OF CAUSING ANY STATE TAKEOVER STATUTE OR OTHER STATE LAW TO BE
APPLICABLE TO THE TRANSACTIONS CONTEMPLATED HEREUNDER.
(F)
IN THE EVENT THAT PRIOR TO OBTAINING THE STOCKHOLDER APPROVAL,
SELLERS BOARD OF DIRECTORS DETERMINES IN GOOD FAITH, AFTER CONSULTATION WITH ITS
FINANCIAL ADVISOR AND OUTSIDE COUNSEL, THAT AN ACQUISITION PROPOSAL NOT
SOLICITED IN VIOLATION OF SECTION 5.4(A) HAS NOT BEEN WITHDRAWN AND CONTINUES TO
CONSTITUTE A SUPERIOR PROPOSAL FOLLOWING THE EXPIRATION OF THE THREE BUSINESS
DAY PERIOD REFERENCED IN SECTION 5.4(D), SELLERS MAY EFFECT A CHANGE OF
RECOMMENDATION AND/OR TERMINATE THIS AGREEMENT IN ACCORDANCE WITH
SECTION 10.1(D)(I); PROVIDED THAT SELLERS BOARD OF DIRECTORS HAS CONCLUDED IN
GOOD FAITH, FOLLOWING CONSULTATION WITH OUTSIDE LEGAL COUNSEL, THAT, IN LIGHT OF
SUCH SUPERIOR PROPOSAL, THE FAILURE OF SELLERS BOARD OF DIRECTORS TO EFFECT A
CHANGE OF RECOMMENDATION OR TO TERMINATE THIS AGREEMENT IS