PROHIBITED BY THIS SECTION 2.2, OTHER THAN NONPUBLIC COMMUNICATION;
(J)
KNOWINGLY ADVISE, ASSIST OR ENCOURAGE ANY PERSONS ENGAGED IN
ANY OF THE ACTIVITIES PROHIBITED BY THIS SECTION 2.2;
(K)
REQUEST THE COMPANY TO WAIVE ANY PROVISION OF THIS SECTION
2.2, OR
(L)
TAKE ANY OTHER ACTION THAT SUCH PERSON REASONABLY BELIEVES
WILL REQUIRE THE COMPANY TO MAKE A PUBLIC ANNOUNCEMENT REGARDING THE POSSIBILITY
OF A BUSINESS COMBINATION, MERGER OR OTHER TYPE OR TRANSACTION DESCRIBED IN THIS
SECTION 2.2.
(M)
"STANDSTILL PERIOD" SHALL MEAN THE PERIOD FROM THE CLOSING DATE
UNTIL THE EARLIEST OF THE FOLLOWING:
(I) THE FOURTH ANNIVERSARY OF THE CLOSING
DATE, (II) THE FIRST DATE ON WHICH THE INVESTORS NO LONGER HAVE THE RIGHT TO
NOMINATE AT LEAST ONE INVESTOR DESIGNEE FOR ELECTION OR APPOINTMENT TO THE BOARD
PURSUANT TO ARTICLE I HEREOF, (III) THE FIRST DATE ON WHICH THE COMPANY OR ANY
OF ITS SUBSIDIARIES COMMENCES OR BECOMES SUBJECT TO ANY PROCEEDING OF
BANKRUPTCY, DISSOLUTION OR LIQUIDATION AND (IV) FIVE (5) BUSINESS DAYS AFTER THE
COMPANY RECEIVES WRITTEN NOTICE FROM INVESTOR OF A MATERIAL BREACH BY THE
COMPANY OF ITS OBLIGATIONS WITH RESPECT TO SECTION 1.1 OR SECTION 1.2 OF THIS
AGREEMENT, WHICH BREACH IS NOT CURED BY THE COMPANY IN SUCH FIVE-DAY PERIOD.
(N)
THE RESTRICTIONS CONTAINED IN THIS SECTION 2.2 SHALL NOT APPLY
TO NONPUBLIC COMMUNICATIONS, INCLUDING ANY NONPUBLIC ACQUISITION OFFER, PROVIDED
THAT SUCH COMMUNICATION IS (I) NOT REASONABLY LIKELY TO REQUIRE THE COMPANY TO
MAKE A PUBLIC ANNOUNCEMENT WITH RESPECT TO THE SUBJECT MATTER OF THE
COMMUNICATIONS OR REGARDING THE POSSIBILITY OF A BUSINESS COMBINATION, MERGER OR
OTHER TYPE OR TRANSACTION DESCRIBED IN THIS SECTION 2.2, AND (II) COMMUNICATED
SOLELY (A) AMONG
ANY OF THE INVESTORS, THE INVESTOR DESIGNEES AND THE INVESTOR
DIRECTORS OR (B) AMONG ANY OF THE INVESTORS, THE INVESTOR DESIGNEES, THE
INVESTOR DIRECTORS AND THE COMPANY (ALL SUCH COMMUNICATION, "NONPUBLIC
COMMUNICATION"); PROVIDED, FURTHER, THAT NOTHING IN THIS SECTION 2.2 SHALL
PROHIBIT THE INVESTORS FROM COMMUNICATING SOLELY IN THE ORDINARY COURSE OF
BUSINESS WITH THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS,
OWNERS, LIMITED PARTNERS OR OTHER APPLICABLE STAKEHOLDERS WHO HAVE BEEN INFORMED
OF, AND AGREED TO BE BOUND BY, THE TERMS OF SECTION 7.3.
(O)
NOTHING IN THIS SECTION 2.2 SHALL BE INTERPRETED AS PREVENTING
THE INVESTORS FROM MAKING REGULATORY FILINGS REQUIRED BY APPLICABLE LAW,
INCLUDING, FOR THE AVOIDANCE OF DOUBT, FILINGS WITH THE COMMISSION ON SCHEDULE
13D AND AMENDMENTS THERETO, AND ON FORMS 3, 4, AND 5 FOR THE PURPOSES OF
DISCLOSING ACQUISITIONS AND DISPOSITIONS OF SECURITIES OF THE COMPANY
("MANDATORY PUBLIC FILINGS"); PROVIDED, HOWEVER, THAT NO MANDATORY PUBLIC FILING
MAY DISCLOSE ANY INTENTION TO UNDERTAKE ANY ACTIVITY PROHIBITED BY THIS SECTION
2.2. FURTHER, NOTHING IN THIS SECTION 2.2 SHALL IN ANY WAY LIMIT THE ACTIVITIES
OF ANY INVESTOR DIRECTOR TAKEN IN HIS OR HER CAPACITY AS A DIRECTOR OF THE
COMPANY.
6
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1
Representations and Warranties of the Investors. Each of
First MP and Second MP, solely on behalf of itself and not on