BE EXPECTED TO LEAD TO ANY ASSET ACQUISITION
PROPOSAL OR (II) NEGOTIATE, ENGAGE IN ANY SUBSTANTIVE DISCUSSIONS, OR ENTER INTO
ANY AGREEMENT, WITH ANY PERSON CONCERNING ANY ASSET ACQUISITION PROPOSAL.
NOTWITHSTANDING THE FOREGOING, IF AT ANY TIME PRIOR TO OBTAINING THE STOCKHOLDER
APPROVAL (I) SELLER RECEIVES AN UNSOLICITED BONA FIDE WRITTEN ASSET ACQUISITION
PROPOSAL THAT DID NOT RESULT FROM ANY BREACH OF THIS SECTION 4.6, (II) THE BOARD
OF DIRECTORS OF SELLER SHALL HAVE FIRST DETERMINED IN GOOD FAITH THAT SUCH ASSET
ACQUISITION PROPOSAL CONSTITUTES A SUPERIOR PROPOSAL, (III) THE BOARD OF
DIRECTORS OF SELLER SHALL HAVE FIRST DETERMINED IN GOOD FAITH, AFTER
CONSULTATION WITH OUTSIDE COUNSEL, THAT FAILURE TO TAKE SUCH ACTION WOULD RESULT
IN A BREACH OF ITS FIDUCIARY DUTIES UNDER THE DELAWARE GENERAL CORPORATION LAW
("DGCL"), AND (IV) SELLER SHALL HAVE NOTIFIED PURCHASER OF SUCH DETERMINATION (A
"NOTICE OF SUPERIOR PROPOSAL") AND OFFERED TO DISCUSS IN GOOD FAITH WITH
PURCHASER (AND, IF PURCHASER ACCEPTS, THEREAFTER NEGOTIATED IN GOOD FAITH), FOR
A PERIOD OF NO LESS THAN FIVE (5) BUSINESS DAYS, ANY ADJUSTMENTS IN THE TERMS
AND CONDITIONS OF THIS AGREEMENT PROPOSED BY PURCHASER.
IF, FOLLOWING SUCH
NOTICE AND DISCUSSIONS, THE BOARD OF DIRECTORS OF SELLER (AFTER CONSULTATION
WITH ITS OUTSIDE COUNSEL AND REGIONALLY-RECOGNIZED INDEPENDENT FINANCIAL
ADVISOR) SHALL HAVE RESOLVED, AFTER TAKING INTO ACCOUNT THE RESULTS OF SUCH
DISCUSSIONS AND PROPOSALS BY PURCHASER, IF ANY, THAT THE ASSET ACQUISITION
PROPOSAL REMAINS A SUPERIOR PROPOSAL, THEN SELLER MAY (A) FURNISH NON-PUBLIC
INFORMATION WITH RESPECT TO SELLER TO THE PERSON OR GROUP MAKING SUCH ASSET
ACQUISITION PROPOSAL AND THEIR REPRESENTATIVES PURSUANT TO A CUSTOMARY
CONFIDENTIALITY AGREEMENT, AND (B) PARTICIPATE IN DISCUSSIONS OR NEGOTIATIONS
WITH SUCH PERSON OR GROUP AND THEIR RESPECTIVE REPRESENTATIVES REGARDING SUCH
ASSET ACQUISITION PROPOSAL, PROVIDED, HOWEVER, THAT SELLER SHALL PROVIDE OR MAKE
AVAILABLE TO PURCHASER ANY MATERIAL NON-PUBLIC INFORMATION CONCERNING SELLER,
THE BUSINESS OR THE TRANSFERRED ASSETS THAT IS PROVIDED TO THE PERSON MAKING
SUCH ASSET ACQUISITION PROPOSAL OR ITS REPRESENTATIVES WHICH WAS NOT PREVIOUSLY
PROVIDED OR MADE AVAILABLE TO PURCHASER.
EACH NOTICE OF SUPERIOR PROPOSAL
DELIVERED PURSUANT TO THIS SECTION 4.6(A) SHALL INCLUDE THE FORMS OF AGREEMENTS
PURSUANT TO WHICH THE SUPERIOR PROPOSAL WOULD BE IMPLEMENTED OR, IF NO SUCH
AGREEMENTS HAVE BEEN PROPOSED, A WRITTEN SUMMARY OF THE MATERIAL TERMS AND
CONDITIONS OF SUCH SUPERIOR PROPOSAL (IT BEING UNDERSTOOD THAT SELLER MUST
DELIVER A NEW NOTICE OF SUPERIOR PROPOSAL AND THEREAFTER NEGOTIATE AS PROVIDED
HEREIN IN THE EVENT OF ANY MODIFICATION TO AN ASSET ACQUISITION PROPOSAL IF SUCH
MODIFICATION RESULTS IN THE DETERMINATION THAT SUCH ASSET ACQUISITION PROPOSAL
IS A SUPERIOR PROPOSAL).
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(B)
NOTHING CONTAINED IN THIS SECTION 4.6 OR IN SECTION 4.21 SHALL
PROHIBIT SELLER FROM TAKING AND DISCLOSING TO ITS STOCKHOLDERS A POSITION WITH
RESPECT TO A TENDER OFFER CONTEMPLATED BY RULE 14D-9 OR RULE 14E-2 PROMULGATED
UNDER THE EXCHANGE ACT OR FROM MAKING ANY DISCLOSURE TO SELLER'S STOCKHOLDERS
IF, IN THE GOOD FAITH JUDGMENT OF THE BOARD OF DIRECTORS OF SELLER, AFTER
CONSULTATION WITH OUTSIDE COUNSEL, FAILURE TO SO DISCLOSE