REQUESTS OR CLARIFICATIONS WITH)
A PERSON WITH WHOM SELLER EXECUTES A CONFIDENTIALITY AGREEMENT ON TERMS NO LESS
FAVORABLE TO SELLER THAN THOSE CONTAINED IN THE SELLER CONFIDENTIALITY AGREEMENT
(AS IN EFFECT PRIOR TO AMENDMENT ON THE DATE HEREOF), OTHER THAN ANY
RESTRICTIONS ON SUCH PERSON'S ABILITY TO MAKE OR AMEND AN ACQUISITION PROPOSAL
AND (2) FOLLOWING RECEIPT OF A BONA FIDE UNSOLICITED ACQUISITION PROPOSAL FROM
SUCH A PERSON, ENGAGING IN DISCUSSIONS WITH SUCH PERSON TO THE EXTENT SUCH
DISCUSSIONS ARE CONFINED TO CLARIFYING ANY TERM OF SUCH ACQUISITION PROPOSAL OR
(B) ENGAGING IN ANY NEGOTIATIONS OR DISCUSSIONS WITH ANY PERSON WHO HAS MADE
SUCH AN ACQUISITION PROPOSAL IF AND ONLY TO THE EXTENT THAT IN EACH SUCH CASE
REFERRED TO IN CLAUSES (A) AND (B) ABOVE, (1) THE BOARD DETERMINES IN GOOD FAITH
AFTER CONSULTATION WITH OUTSIDE LEGAL COUNSEL THAT THE DIRECTORS OF SELLER
SHOULD TAKE SUCH ACTION IN ORDER TO COMPLY WITH THEIR FIDUCIARY DUTIES UNDER
APPLICABLE LAW, (2) SUCH ACQUISITION PROPOSAL INVOLVES THE DIRECT OR INDIRECT
ACQUISITION BY ONE OR MORE THIRD PARTIES OF AT LEAST 66-2/3% OF (X) ALL ASSETS
RELATED TO THE BUSINESS OR (Y) THE OUTSTANDING EQUITY SECURITIES OF SELLER AND
(3) IN EACH SUCH CASE REFERRED TO IN CLAUSE (B) ABOVE, THE BOARD DETERMINES IN
GOOD FAITH (AFTER CONSULTATION WITH ITS FINANCIAL AND LEGAL ADVISORS) THAT SUCH
ACQUISITION PROPOSAL, IF ACCEPTED, IS REASONABLY LIKELY TO BE CONSUMMATED,
TAKING INTO ACCOUNT ALL LEGAL, FINANCIAL AND REGULATORY ASPECTS OF THE PROPOSAL
AND THE PERSON MAKING THE PROPOSAL, AND IF CONSUMMATED, WOULD RESULT IN A
TRANSACTION MORE FAVORABLE (TAKING INTO ACCOUNT, WITHOUT LIMITATION, FINANCIAL
TERMS OF ANY TERMINATION FEE THAT MAY BE PAYABLE PURSUANT TO SECTION 8.5(B)) TO
SELLER'S STAKEHOLDERS FROM A FINANCIAL POINT OF VIEW THAN THE TRANSACTION (ANY
SUCH MORE FAVORABLE ACQUISITION PROPOSAL BEING REFERRED TO IN THIS AGREEMENT AS
A "SUPERIOR PROPOSAL"). SELLER OR ANY OF ITS SUBSIDIARIES SHALL NOTIFY BUYER
PROMPTLY (BUT IN NO EVENT LATER THAN 24 HOURS) AFTER RECEIPT BY SELLER OR ANY OF
ITS SUBSIDIARIES (OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR
ADVISORS) OF ANY ACQUISITION PROPOSAL, ANY INDICATION THAT A THIRD PARTY IS
CONSIDERING MAKING AN ACQUISITION PROPOSAL OR ANY REQUEST FOR INFORMATION
RELATING TO THE TRANSFERRED ASSETS, ANY SPECIFIED BUSINESS, SELLER OR ANY OF ITS
SUBSIDIARIES OR FOR ACCESS TO ANY SPECIFIED BUSINESS OR ANY OF THE TRANSFERRED
ASSETS BY ANY THIRD PARTY THAT MAY BE CONSIDERING MAKING, OR HAS MADE, AN
ACQUISITION PROPOSAL. SELLER SHALL PROVIDE SUCH NOTICE ORALLY AND IN WRITING AND
SHALL IDENTIFY THE THIRD PARTY MAKING, AND THE TERMS AND CONDITIONS OF, ANY SUCH
ACQUISITION PROPOSAL, INDICATION OR REQUEST. SELLER SHALL KEEP BUYER FULLY
INFORMED, ON A CURRENT BASIS, OF THE STATUS AND DETAILS OF ANY SUCH ACQUISITION
PROPOSAL, INDICATION OR REQUEST. SELLER SHALL PROMPTLY PROVIDE BUYER WITH ANY
NON-PUBLIC INFORMATION CONCERNING SELLER'S
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BUSINESS, PRESENT OR FUTURE PERFORMANCE, FINANCIAL CONDITION OR RESULTS OF
OPERATIONS, PROVIDED TO ANY THIRD PARTY THAT WAS NOT PREVIOUSLY PROVIDED TO
BUYER; AND
(B)
(I)
PRIOR