respect to the
foregoing matters, nothing contained herein shall give Parent any right to
manage, control, direct or be involved in the management of the business of the
Company and its Subsidiaries prior to the Closing.
SECTION 6.3.
ACCESS TO INFORMATION.
UNTIL THE
CLOSING, THE COMPANY SHALL AND SHALL CAUSE ITS SUBSIDIARIES TO ALLOW PARENT AND
ITS AGENTS, ADVISORS, LENDERS AND REPRESENTATIVES
39
REASONABLE ACCESS DURING NORMAL BUSINESS HOURS UPON REASONABLE NOTICE TO THE
BOOKS, RECORDS, REPRESENTATIVES, OFFICERS, EMPLOYEES, AGENTS, PROPERTIES AND
OFFICES OF THE COMPANY AND ITS SUBSIDIARIES.
ALL SUCH ACCESS SHALL BE SUBJECT
TO THE TERMS OF THE CONFIDENTIALITY AGREEMENT.
SECTION 6.4.
SATISFACTION OF CONDITIONS
PRECEDENT.
THE COMPANY WILL AND WILL CAUSE EACH OF ITS SUBSIDIARIES TO USE ITS
COMMERCIALLY REASONABLE EFFORTS TO SATISFY OR CAUSE TO BE SATISFIED ALL THE
CONDITIONS PRECEDENT WHICH ARE SET FORTH IN SECTIONS 9.1 AND 9.2, AND THE
COMPANY WILL AND WILL CAUSE EACH OF ITS SUBSIDIARIES TO USE ITS COMMERCIALLY
REASONABLE EFFORTS TO CAUSE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT TO
BE CONSUMMATED, AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO OBTAIN
ALL CONSENTS AND AUTHORIZATIONS OF THIRD PARTIES AND TO MAKE ALL FILINGS WITH,
AND GIVE ALL NOTICES TO, THIRD PARTIES WHICH MAY BE NECESSARY OR REASONABLY
REQUIRED ON ITS PART IN ORDER TO EFFECT THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
SECTION 6.5.
NO SOLICITATION.
(A)
FROM THE DATE HEREOF UNTIL THE TERMINATION
OF THIS AGREEMENT PURSUANT TO SECTION 10.1, EXCEPT TO THE EXTENT REQUIRED TO BE
DISCLOSED IN COMPANY SEC DOCUMENTS, THE COMPANY WILL NOT, AND WILL NOT PERMIT OR
CAUSE ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, INVESTMENT BANKERS,
CONSULTANTS AND OTHER AGENTS TO, DIRECTLY OR INDIRECTLY, TAKE ANY ACTION TO
SOLICIT, INITIATE, ENCOURAGE OR FACILITATE THE MAKING OF ANY ACQUISITION
PROPOSAL (AS DEFINED BELOW) OR ANY INQUIRY WITH RESPECT THERETO OR ENGAGE IN
DISCUSSIONS OR NEGOTIATIONS WITH ANY PERSON WITH RESPECT THERETO, OR DISCLOSE
ANY NONPUBLIC INFORMATION RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES
(INCLUDING THIS AGREEMENT) OR AFFORD ACCESS TO THE PROPERTIES, BOOKS OR RECORDS
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES TO, OR OTHERWISE ASSIST OR PARTICIPATE
IN OR FACILITATE IN ANY OTHER MANNER ANY EFFORT OR ATTEMPT BY ANY PERSON THAT
HAS MADE OR, TO THE KNOWLEDGE OF THE COMPANY, IS CONTEMPLATING MAKING ANY
ACQUISITION PROPOSAL.
THE COMPANY WILL, AND WILL CAUSE THE OTHER PERSONS LISTED
IN THE FIRST SENTENCE OF THIS SECTION 6.5 TO, IMMEDIATELY CEASE AND CAUSE TO BE
TERMINATED ALL EXISTING ACTIVITIES DISCUSSIONS AND NEGOTIATIONS, IF ANY, THAT
HAVE TAKEN PLACE PRIOR TO THE DATE HEREOF WITH ANY PARTIES WITH RESPECT TO ANY
ACQUISITION PROPOSAL.
(B)
NOTWITHSTANDING THE FOREGOING, NOTHING
CONTAINED IN THIS SECTION 6.5 SHALL PREVENT THE COMPANY FROM ENTERING INTO
DISCUSSIONS OR NEGOTIATIONS WITH ANY PERSON IN CONNECTION WITH A BONA FIDE
ACQUISITION PROPOSAL RECEIVED FROM SUCH PERSON THAT THE BOARD OF DIRECTORS OF
THE COMPANY DETERMINES IN GOOD FAITH COULD LEAD TO A SUPERIOR PROPOSAL (AS
DEFINED BELOW).
THE COMPANY WILL NOTIFY (WHICH