ANY OF ITS SUBSIDIARIES NOR
ANY OF THE OFFICERS AND DIRECTORS OF IT OR ITS SUBSIDIARIES SHALL, AND THAT IT
SHALL USE ITS REASONABLE BEST EFFORTS TO CAUSE ITS AND ITS SUBSIDIARIES'
EMPLOYEES, AGENTS AND REPRESENTATIVES (INCLUDING ANY INVESTMENT BANKER, ATTORNEY
OR ACCOUNTANT RETAINED BY IT OR ANY OF
*CONFIDENTIAL TREATMENT REQUESTED
34
ITS SUBSIDIARIES) NOT TO, DIRECTLY OR INDIRECTLY, (A) INITIATE, SOLICIT,
ENCOURAGE OR KNOWINGLY FACILITATE (INCLUDING BY WAY OF FURNISHING INFORMATION)
ANY INQUIRIES OR THE MAKING OF ANY PROPOSAL OR OFFER WITH RESPECT TO, OR A
TRANSACTION TO EFFECT, A MERGER, REORGANIZATION, SHARE EXCHANGE, CONSOLIDATION,
BUSINESS COMBINATION, RECAPITALIZATION, LIQUIDATION, DISSOLUTION OR SIMILAR
TRANSACTION INVOLVING IT OR ANY OF ITS SUBSIDIARIES, OR ANY PURCHASE OR SALE OF
15% OR MORE OF THE CONSOLIDATED ASSETS (INCLUDING WITHOUT LIMITATION STOCK OF
ITS SUBSIDIARIES) OF IT AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, OR ANY PURCHASE
OR SALE OF, OR TENDER OR EXCHANGE OFFER FOR, THE EQUITY SECURITIES OF THE
COMPANY THAT, IF CONSUMMATED, WOULD RESULT IN ANY PERSON (OR THE STOCKHOLDERS OF
SUCH PERSON) BENEFICIALLY OWNING OR HAVING THE RIGHT TO ACQUIRE SECURITIES
REPRESENTING 15% OR MORE OF THE VOTING SECURITIES (OR OF THE SURVIVING PARENT
ENTITY IN SUCH TRANSACTION) (ANY SUCH PROPOSAL, OFFER OR TRANSACTION, INCLUDING
ANY SINGLE OR MULTI-STEP TRANSACTION OR SERIES OF RELATED TRANSACTIONS (OTHER
THAN A PROPOSAL OR OFFER MADE BY THE PURCHASER OR ANY OF ITS AFFILIATES) BEING
HEREINAFTER REFERRED TO AS AN "ACQUISITION PROPOSAL"), (B) HAVE ANY DISCUSSION
WITH OR PROVIDE ANY CONFIDENTIAL INFORMATION OR DATA TO ANY PERSON RELATING TO
AN ACQUISITION PROPOSAL, OR ENGAGE IN ANY NEGOTIATIONS CONCERNING AN ACQUISITION
PROPOSAL, OR TAKE ACTION TO FACILITATE ANY EFFORT OR ATTEMPT TO MAKE OR
IMPLEMENT AN ACQUISITION PROPOSAL, (C) APPROVE OR RECOMMEND, OR PROPOSE PUBLICLY
TO APPROVE OR RECOMMEND, ANY ACQUISITION PROPOSAL OR (D) APPROVE OR RECOMMEND,
OR PROPOSE TO APPROVE OR RECOMMEND, OR EXECUTE OR ENTER INTO, ANY LETTER OF
INTENT, AGREEMENT IN PRINCIPLE, MERGER AGREEMENT, ACQUISITION AGREEMENT, OPTION
AGREEMENT OR OTHER SIMILAR AGREEMENT RELATING TO AN ACQUISITION PROPOSAL (AN
"ACQUISITION AGREEMENT") OR PROPOSE PUBLICLY OR AGREE TO DO ANY OF THE FOREGOING
RELATED TO ANY ACQUISITION PROPOSAL; PROVIDED, HOWEVER, THAT THE PROVISIONS OF
THIS SECTION 5.2 (EXCEPT FOR THE LAST FIVE (5) SENTENCES OF THIS SECTION 5.2)
SHALL NOT APPLY TO DISCUSSIONS WITH RESPECT TO A PERMITTED EQUITY OFFERING WITH
THE PERSONS LISTED ON SCHEDULE 5.2 OF THE COMPANY DISCLOSURE LETTER; PROVIDED,
FURTHER, HOWEVER, THE FOREGOING SHALL NOT PROHIBIT THE COMPANY, (I) FROM
COMPLYING WITH RULE 14E-2 AND RULE 14D-9 UNDER THE EXCHANGE ACT WITH REGARD TO A
BONA FIDE TENDER OFFER OR EXCHANGE OFFER OR (II) FROM PARTICIPATING IN
NEGOTIATIONS OR DISCUSSIONS WITH OR FURNISHING INFORMATION TO ANY PERSON IN
CONNECTION WITH AN UNSOLICITED BONA FIDE ACQUISITION PROPOSAL WHICH IS SUBMITTED
IN WRITING BY SUCH PERSON TO THE BOARD OF DIRECTORS AFTER THE DATE HEREOF;
PROVIDED, FURTHER, HOWEVER, THAT PRIOR TO PARTICIPATING IN ANY SUCH DISCUSSIONS
OR NEGOTIATIONS OR FURNISHING ANY INFORMATION, (A) THE COMPANY RECEIVES FROM
SUCH PERSON