OF
THE BOARD OF DIRECTORS OF THE COMPANY) ANY MEETING OF THE BOARD OF DIRECTORS OF
THE COMPANY AT WHICH THE BOARD OF DIRECTORS IS REASONABLY EXPECTED TO DISCUSS OR
CONSIDER ANY ACQUISITION PROPOSAL.
(C)
THE COMPANY SHALL, AND SHALL CAUSE AND INSTRUCT ITS
REPRESENTATIVES TO, IMMEDIATELY CEASE ALL DISCUSSIONS OR NEGOTIATIONS, IF ANY,
WITH ANY PERSON OTHER THAN BUYER THAT MAY BE ONGOING AS OF THE DATE OF THIS
AGREEMENT WITH RESPECT TO ANY ACQUISITION PROPOSAL.
THE COMPANY SHALL
IMMEDIATELY REQUEST EACH PERSON WHO HAS HERETOFORE EXECUTED A CONFIDENTIALITY
AGREEMENT IN CONNECTION WITH ITS CONSIDERATION OF ACQUIRING THE COMPANY OR ANY
PORTION THEREOF TO RETURN ALL NONPUBLIC INFORMATION HERETOFORE FURNISHED TO SUCH
PERSON BY OR ON BEHALF OF THE COMPANY.
ANY VIOLATION OF THIS SECTION 4.7 BY THE
COMPANY'S REPRESENTATIVES SHALL BE DEEMED TO BE A BREACH OF THIS AGREEMENT BY
THE COMPANY, WHETHER OR NOT SUCH REPRESENTATIVE IS AUTHORIZED TO ACT AND WHETHER
OR NOT SUCH REPRESENTATIVE IS PURPORTING TO ACT ON BEHALF OF THE COMPANY.
THE
PARTIES ACKNOWLEDGE AND AGREE THAT FOR PURPOSES OF THIS SECTION 4.7, PARENT
SHALL BE DEEMED TO NOT BE A REPRESENTATIVE OF THE COMPANY.
4.8
KEY EMPLOYEES.
THE COMPANY SHALL USE ITS BEST EFFORTS TO KEEP
AVAILABLE THE SERVICES OF EACH OF THE KEY EMPLOYEES BY OFFERING TO CONTINUE TO
EMPLOY THEM UNTIL CLOSING, PROVIDED THAT:
(A) FROM THE DATE OF THIS AGREEMENT
THROUGH THE CLOSING, THE COMPANY SHALL PAY AND PROVIDE TO EACH SUCH EMPLOYEE THE
COMPENSATION AND BENEFITS PROVIDED BY THE COMPANY TO SUCH EMPLOYEE AS OF THE
DATE OF THIS AGREEMENT AND (B) ON OR PRIOR TO MARCH 1, 2007, AND SUBJECT TO ANY
CUSTOMARY CONDITIONS OF BUYER FOR EMPLOYMENT OF MANAGEMENT PERSONNEL, BUYER
SHALL PROVIDE TO EACH OF THE KEY EMPLOYEES (WITH A COPY TO THE COMPANY) A
WRITTEN OFFER OF CONTINUED EMPLOYMENT BY THE COMPANY (EACH, A "CONTINUED OFFER
OF EMPLOYMENT") THAT WILL INCLUDE AN ANNUAL BASE SALARY NO LESS THAN THE ANNUAL
BASE SALARY PAID TO SUCH EMPLOYEE BY THE COMPANY ON THE DAY PRIOR TO
COMMENCEMENT OF THE COMPANY CASE, SUCH EMPLOYMENT TO BECOME EFFECTIVE UPON
CONSUMMATION OF THE CLOSING.
4.9
STATE PROPERTY TAXES.
IF, FOLLOWING THE CONSUMMATION OF THE
CLOSING, THE COMPANY'S POSITION WITH RESPECT TO STATE PROPERTY TAXES FOR PERIODS
(OR PORTIONS THEREOF) FOLLOWING THE COMPANY PETITION DATE IS CHALLENGED BY A
GOVERNMENT AUTHORITY (THE "CHALLENGER") AND, PRIOR TO THE CLOSING, THE COMPANY
HAD PAID SUCH TAXES CONSISTENT WITH SCHEDULE 1.1(D), THEN BUYER SHALL ASSUME THE
DEFENSE OF SUCH CHALLENGE, AND IF SUCH CHALLENGE IS
30
SUCCESSFUL, THEN BUYER SHALL PAY ANY ADDITIONAL AMOUNTS FINALLY ADJUDICATED TO
BE OWED TO THE CHALLENGER WITH RESPECT TO SUCH POST COMPANY PETITION DATE TAXES.
4.10
CURE AMOUNTS.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS
AGREEMENT TO THE CONTRARY, UPON RECEIPT BY THE COMPANY OF A WRITTEN NOTICE FROM
BUYER WITH RESPECT TO THE FOLLOWING MATTERS, (A) THE COMPANY SHALL BE PERMITTED
TO USE UP TO $4.5 MILLION OF ITS CASH TO PAY, UPON CONSUMMATION OF THE