NECESSARY TO COMPLY
WITH ITS FIDUCIARY OBLIGATIONS TO EITHER OF SELLERS STOCKHOLDERS UNDER
APPLICABLE LAW; PROVIDED FURTHER, HOWEVER THAT SELLERS SHALL NOT TERMINATE THIS
AGREEMENT PURSUANT TO SECTION 10.1(D)(I), AND ANY PURPORTED TERMINATION PURSUANT
TO SECTION 10.1(D)(I) SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS SELLERS
SHALL HAVE COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OF THE PROVISIONS OF THIS
SECTION 5.4, INCLUDING THE NOTIFICATION PROVISIONS IN THIS SECTION 5.4, AND WITH
ALL APPLICABLE REQUIREMENTS OF SECTION 10.3 (INCLUDING THE PAYMENT OF THE
TERMINATION FEE PRIOR TO OR CONCURRENTLY WITH SUCH TERMINATION).
(G)
SELLERS SHALL PROVIDE BUYER WITH THREE BUSINESS DAYS PRIOR NOTICE
(OR SUCH LESSER PRIOR NOTICE AS IS PROVIDED TO THE MEMBERS OF SELLERS BOARD OF
DIRECTORS) OF ANY MEETING OF SELLERS BOARD OF DIRECTORS OR COMMITTEE OF SELLERS
BOARD OF DIRECTORS AT WHICH THE SELLERS BOARD OF DIRECTORS OR COMMITTEE THEREOF
IS REASONABLY EXPECTED TO DISCUSS ANY ACQUISITION PROPOSAL.
Nothing contained in this Section 5.4 or elsewhere in this Agreement shall
prohibit Parent from (x) taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) under the Exchange Act, or (y) making any
disclosure to the stockholders of the Sellers if Parent's board of directors
determines in good faith (after consultation with its outside legal counsel)
that the failure to make such disclosure would be reasonably expected to be a
breach of its duty of candor under applicable law; provided, however, that any
action taken or disclosure made under this Section 5.4 shall not limit or modify
the effect that any such action or disclosure may have under any other provision
of this Agreement.
52
5.5
Stockholder Meeting.
(A)
PARENT SHALL, AS PROMPTLY AS REASONABLY PRACTICABLE FOLLOWING THE
EXECUTION OF THIS AGREEMENT AND SUBJECT TO SECTION 5.4(F), ESTABLISH A RECORD
DATE FOR, DULY CALL, GIVE NOTICE OF CONVENE AND HOLD A MEETING OF ITS
STOCKHOLDERS SOLELY FOR THE PURPOSE OF SEEKING THE STOCKHOLDER APPROVAL
("STOCKHOLDER MEETING"). IN CONNECTION WITH THE STOCKHOLDER MEETING, PARENT,
ACTING THROUGH THE PARENT BOARD OF DIRECTORS, WILL (I) SUBJECT TO
SECTION 5.4(F) MAKE THE SELLERS' BOARD RECOMMENDATION, (II) USE ITS COMMERCIALLY
REASONABLE EFFORTS (INCLUDING POSTPONING OR ADJOURNING THE STOCKHOLDER MEETING
TO SOLICIT ADDITIONAL PROXIES) TO OBTAIN AND SHALL TAKE ALL OTHER REASONABLE
ACTION NECESSARY OR ADVISABLE TO SECURE, THE STOCKHOLDER APPROVAL AND
(III) OTHERWISE COMPLY WITH PARENT'S CERTIFICATE OF INCORPORATION, BYLAWS AND
APPLICABLE LAW IN CONNECTION WITH SUCH MEETING.
(B)
AS PROMPTLY AS REASONABLY PRACTICABLE AFTER THE DATE OF THIS
AGREEMENT, PARENT SHALL PREPARE AND FILE WITH THE SEC, AND SHALL USE ITS
COMMERCIALLY REASONABLE EFFORTS TO HAVE CLEARED BY THE SEC, THE PROXY STATEMENT
(TOGETHER WITH ANY AMENDMENTS THEREOF OR SUPPLEMENTS THERETO) TO BE DISTRIBUTED
IN CONNECTION WITH THE STOCKHOLDER MEETING. BUYER AND SELLERS EACH SHALL
PROMPTLY AND TIMELY PROVIDE ALL INFORMATION RELATING TO ITS RESPECTIVE
BUSINESSES OR OPERATIONS NECESSARY FOR INCLUSION IN THE PROXY STATEMENT TO
SATISFY ALL REQUIREMENTS OF APPLICABLE STATE AND UNITED STATES FEDERAL
SECURITIES LAWS AND NEITHER THE PROXY STATEMENT NOR ANY AMENDMENT