BE SUBSTANTIALLY
IDENTICAL IN TERMS OF COVERAGE, AND HAVE CONDITIONS SUBSTANTIALLY IDENTICAL, TO
THE POLICIES MAINTAINED BY THE COMPANY ON THE DATE HEREOF (PROVIDED THAT PARENT
MAY, OR MAY CAUSE THE SURVIVING CORPORATION TO, SUBSTITUTE THEREFOR POLICIES,
INCLUDING A "TAIL" POLICY, OF AT LEAST THE SAME COVERAGE CONTAINING TERMS AND
CONDITIONS WHICH ARE NO LESS ADVANTAGEOUS) WITH RESPECT TO MATTERS OCCURRING
PRIOR TO THE EFFECTIVE TIME;
29
PROVIDED, FURTHER, HOWEVER, THAT IN SATISFYING ITS OBLIGATIONS UNDER THIS
SECTION 4.5, THE SURVIVING CORPORATION SHALL NOT BE OBLIGATED TO PAY (I) IN THE
CASE OF ANNUAL PREMIUMS, SUCH PREMIUMS AT A RATE IN EXCESS OF 250% OF THE RATE
OF THE COMPANY'S ANNUAL PREMIUMS FOR COVERAGE FOR ITS CURRENT FISCAL YEAR (WHICH
ANNUAL PREMIUMS THE COMPANY REPRESENTS AND WARRANTS TO BE APPROXIMATELY $860,000
IN THE AGGREGATE) AND (II) IN THE CASE OF A ONE-TIME PREMIUM PAYMENT FOR "TAIL"
POLICIES OF MORE THAN $2,250,000 TO OBTAIN AND MAINTAIN INSURANCE COVERAGE
PURSUANT HERETO FOR A SIX-YEAR PERIOD, IT BEING UNDERSTOOD AND AGREED THAT
PARENT AND THE SURVIVING CORPORATION SHALL NEVERTHELESS BE OBLIGATED TO PROVIDE
SUCH COVERAGE FOR SUCH SIX-YEAR PERIOD AS MAY BE OBTAINED FOR SUCH AMOUNT.
THE
PROVISIONS OF THIS SECTION 4.5 ARE INTENDED TO BE FOR THE BENEFIT OF, AND SHALL
BE ENFORCEABLE BY, EACH PERSON WHO IS OR HAS BEEN A DIRECTOR OR OFFICER OF THE
COMPANY OR A SUBSIDIARY OF THE COMPANY, AND SUCH DIRECTOR'S OR OFFICER'S HEIRS
AND PERSONAL REPRESENTATIVES AND SHALL BE BINDING ON ALL SUCCESSORS AND ASSIGNS
OF PARENT AND THE SURVIVING CORPORATION.
SECTION 4.6
REASONABLE EFFORTS.
UPON THE TERMS AND SUBJECT TO THE
CONDITIONS OF THIS AGREEMENT, UNLESS, TO THE EXTENT PERMITTED BY
SECTION 4.10(B), THE BOARD OF DIRECTORS OF THE COMPANY APPROVES OR RECOMMENDS A
SUPERIOR PROPOSAL (AS DEFINED IN SECTION 4.10(B), EACH OF THE PARTIES HERETO
AGREES TO USE ALL REASONABLE EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTION
AND TO DO, OR CAUSE TO BE DONE, AND TO ASSIST AND COOPERATE WITH THE OTHER
PARTIES IN DOING, ALL THINGS NECESSARY, PROPER OR ADVISABLE TO CONSUMMATE AND
MAKE EFFECTIVE, IN THE MOST EXPEDITIOUS MANNER PRACTICABLE, THE MERGER AND THE
OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE ARTICLES OF MERGER,
SUBJECT TO THE APPROPRIATE VOTE OF STOCKHOLDERS OF THE COMPANY DESCRIBED IN
SECTION 5.1(A), INCLUDING (I) THE OBTAINING OF ALL NECESSARY ACTIONS OR
NON-ACTIONS, WAIVERS, CONSENTS AND APPROVALS FROM ALL GOVERNMENTAL ENTITIES AND
THE TAKING OF ALL REASONABLE STEPS AS MAY BE NECESSARY TO OBTAIN AN APPROVAL OR
WAIVER FROM, OR TO AVOID AN ACTION OR PROCEEDING BY, ANY GOVERNMENTAL ENTITY
(INCLUDING THOSE IN CONNECTION WITH TAKEOVER STATUTES), (II) THE GIVING OF ALL
NOTICES AND OBTAINING OF ALL NECESSARY CONSENTS, APPROVALS, WAIVERS AND
EXEMPTIONS FROM THIRD PARTIES, INCLUDING THE NOTICES, CONSENTS, APPROVALS,
WAIVERS AND EXEMPTIONS SET FORTH IN SCHEDULE 2.3 OF THE COMPANY LETTER,
(III) THE DEFENDING OF ANY LAWSUITS OR OTHER LEGAL PROCEEDINGS, WHETHER JUDICIAL
OR ADMINISTRATIVE, CHALLENGING THIS AGREEMENT OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING SEEKING