REASONABLY BE EXPECTED TO RESULT IN A SUPERIOR
PROPOSAL IN ALL OTHER RESPECTS, IT SHALL PROMPTLY, BUT IN ANY EVENT IN LESS THAN
TWO BUSINESS DAYS, PROVIDE TO PARENT WRITTEN NOTICE THAT SHALL STATE EXPRESSLY
(A) THAT IT HAS RECEIVED A TAKEOVER PROPOSAL WHICH CONSTITUTES A SUPERIOR
PROPOSAL OR WHICH COULD REASONABLY BE EXPECTED TO RESULT IN A SUPERIOR PROPOSAL,
AND (B) THE IDENTITY OF THE PARTY MAKING SUCH TAKEOVER PROPOSAL AND THE MATERIAL
TERMS AND CONDITIONS OF THE TAKEOVER PROPOSAL (THE "SUPERIOR PROPOSAL NOTICE").
(E)
FOR A PERIOD OF NOT LESS THAN FIVE BUSINESS DAYS AFTER RECEIPT BY
PARENT FROM THE COMPANY OF EACH SUPERIOR PROPOSAL NOTICE (OTHER THAN PURSUANT TO
THE ASSET AUCTION), THE COMPANY SHALL, IF REQUESTED BY PARENT, NEGOTIATE IN GOOD
FAITH WITH PARENT TO PERMIT PARENT TO IMPROVE THE TERMS AND CONDITIONS OF THIS
AGREEMENT (FROM THE VIEWPOINT OF THE COMPANY AND ITS STOCKHOLDERS) SO THAT THE
COMPANY WOULD BE ABLE TO PROCEED WITH THE COMPANY RECOMMENDATION TO ITS
STOCKHOLDERS WITHOUT MAKING A CHANGE OF RECOMMENDATION.
(F)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN
RESPONSE TO THE RECEIPT OF A SUPERIOR PROPOSAL THAT HAS NOT BEEN WITHDRAWN AND
CONTINUES TO CONSTITUTE A SUPERIOR PROPOSAL AFTER COMPLIANCE BY THE COMPANY WITH
SECTION 4.10(E), THE BOARD OF DIRECTORS OF THE COMPANY MAY WITHHOLD OR WITHDRAW
THE COMPANY RECOMMENDATION AND, IN THE CASE OF A SUPERIOR PROPOSAL THAT IS A
TENDER OR EXCHANGE OFFER MADE DIRECTLY TO ITS STOCKHOLDERS, MAY RECOMMEND THAT
ITS STOCKHOLDERS ACCEPT THE TENDER OR EXCHANGE OFFER (ANY OF THE FOREGOING
ACTIONS, WHETHER BY THE BOARD OF DIRECTORS OR A COMMITTEE THEREOF, A "CHANGE OF
RECOMMENDATION"), IF BOTH OF THE FOLLOWING CONDITIONS ARE MET:
(I)
THE COMPANY STOCKHOLDERS' MEETING HAS
NOT OCCURRED; AND
(II)
A MAJORITY OF THE DISINTERESTED MEMBERS OF
THE BOARD OF DIRECTORS OF THE COMPANY HAS CONCLUDED IN GOOD FAITH, FOLLOWING
CONSULTATION WITH ITS OUTSIDE LEGAL COUNSEL, THAT, IN LIGHT OF SUCH SUPERIOR
PROPOSAL, THE FAILURE OF THE BOARD OF DIRECTORS TO EFFECT A CHANGE OF
RECOMMENDATION WOULD RESULT IN A BREACH OF ITS FIDUCIARY OBLIGATIONS TO ITS
STOCKHOLDERS UNDER APPLICABLE LAW.
36
SECTION 4.11
FEES AND EXPENSES.
(A)
EXCEPT AS PROVIDED IN SECTION 4.11(B), WHETHER OR NOT THE MERGER
IS CONSUMMATED, ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY INCLUDING THE FEES AND
DISBURSEMENTS OF COUNSEL, FINANCIAL ADVISORS AND ACCOUNTANTS, SHALL BE PAID BY
THE PARTY INCURRING SUCH COSTS AND EXPENSES.
(B)
PROVIDED THAT NEITHER PARENT NOR SUB IS IN MATERIAL BREACH OF ITS
REPRESENTATIONS, WARRANTIES OR AGREEMENTS UNDER THIS AGREEMENT, (I) IF THIS
AGREEMENT IS TERMINATED BY THE COMPANY PURSUANT TO SECTION 6.1(E) OR 6.1(G),
(II) IF THIS AGREEMENT IS TERMINATED BY PARENT PURSUANT TO SECTION 6.1(E) OR
(F) OR (III) IF (A) AFTER THE DATE OF THIS AGREEMENT, (X) ANY PERSON OR "GROUP"
(WITHIN THE MEANING OF SECTION 13(D)(3) OF THE EXCHANGE ACT) SHALL HAVE PUBLICLY
MADE OR OTHERWISE COMMUNICATED TO THE BOARD OF DIRECTORS OF THE COMPANY A BONA