in all material respects with the applicable requirements of the
Exchange Act, the rules and regulations thereunder and other applicable Laws.
SECTION 6.03.
Access to Information; Confidentiality.
(A)
FROM THE DATE HEREOF TO THE CLOSING AND IN
COMPLIANCE WITH APPLICABLE LAWS, THE COMPANY SHALL, AND SHALL CAUSE THE
SUBSIDIARIES AND THE OFFICERS, DIRECTORS, EMPLOYEES, AUDITORS AND AGENTS OF THE
COMPANY AND THE SUBSIDIARIES TO, AFFORD THE OFFICERS, EMPLOYEES, ACCOUNTANTS,
COUNSEL, INVESTMENT BANKERS AND OTHER AGENTS OF THE INVESTORS REASONABLE ACCESS
AT ALL REASONABLE TIMES TO THE OFFICERS, EMPLOYEES, AGENTS, PROPERTIES, OFFICES
AND OTHER FACILITIES, BOOKS AND RECORDS OF THE COMPANY AND EACH SUBSIDIARY, AND
SHALL FURNISH THE INVESTORS WITH SUCH FINANCIAL, OPERATING AND OTHER DATA AND
INFORMATION AS THE INVESTORS, THROUGH THEIR OFFICERS, EMPLOYEES OR AGENTS, MAY
REASONABLY REQUEST.
(B)
ALL INFORMATION OBTAINED BY THE INVESTORS
PURSUANT TO THIS SECTION 6.03 SHALL BE KEPT CONFIDENTIAL IN ACCORDANCE WITH THE
CONFIDENTIALITY AGREEMENT, DATED AS OF JANUARY 7, 2005 (THE "CONFIDENTIALITY
AGREEMENT"), BETWEEN AN AFFILIATE OF THE INVESTORS AND THE COMPANY.
(C)
NO INVESTIGATION PURSUANT TO THIS
SECTION 6.03 SHALL AFFECT ANY REPRESENTATION OR WARRANTY IN THIS AGREEMENT OF
ANY PARTY HERETO OR ANY CONDITION TO THE OBLIGATIONS OF THE PARTIES HERETO.
SECTION 6.04.
No Solicitation of Transactions.
(A)
NONE OF THE COMPANY OR ANY SUBSIDIARY
SHALL, DIRECTLY OR INDIRECTLY, TAKE (AND THE COMPANY SHALL NOT AUTHORIZE OR
PERMIT ANY DIRECTORS, OFFICERS, EMPLOYEES, ACCOUNTANTS, CONSULTANTS, LEGAL
COUNSEL, ADVISORS, AGENTS OR OTHER REPRESENTATIVES OF THE COMPANY OR ANY
SUBSIDIARY OR, TO THE EXTENT WITHIN THE COMPANY'S CONTROL, OTHER AFFILIATES TO
TAKE) ANY ACTION TO (I) ENCOURAGE (INCLUDING, WITHOUT LIMITATION, BY WAY OF
FURNISHING NON-PUBLIC INFORMATION), SOLICIT, INITIATE OR FACILITATE ANY
ACQUISITION PROPOSAL, (II)
ENTER INTO ANY AGREEMENT WITH RESPECT TO ANY
ACQUISITION PROPOSAL OR ENTER INTO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING
REQUIRING IT TO ABANDON, TERMINATE OR FAIL TO CONSUMMATE THE ISSUANCE OF THE
PURCHASED SECURITIES OR ANY OTHER TRANSACTION CONTEMPLATED BY THIS AGREEMENT OR
(III) PARTICIPATE IN ANY WAY IN DISCUSSIONS OR NEGOTIATIONS WITH, OR FURNISH ANY
INFORMATION TO, ANY PERSON IN CONNECTION WITH, OR TAKE ANY OTHER ACTION TO
FACILITATE ANY INQUIRIES OR THE MAKING OF ANY PROPOSAL THAT CONSTITUTES, OR
WOULD REASONABLY BE EXPECTED TO LEAD TO, ANY ACQUISITION PROPOSAL, EXCEPT AS
PERMITTED BY SECTION 6.04(C).
THE COMPANY SHALL TAKE ALL ACTION NECESSARY TO
ENSURE THAT THE DIRECTORS, OFFICERS, EMPLOYEES, ACCOUNTANTS, CONSULTANTS, LEGAL
COUNSEL, ADVISORS, AGENTS AND OTHER REPRESENTATIVES OF THE COMPANY OR ANY
SUBSIDIARY AND, TO THE EXTENT WITHIN THE COMPANY'S CONTROL, OTHER AFFILIATES, DO
NOT TAKE OR DO ANY OF THE ACTIONS REFERENCED IN THE IMMEDIATELY FOREGOING
SENTENCE.
UPON EXECUTION OF THIS AGREEMENT, THE COMPANY SHALL CEASE IMMEDIATELY
AND CAUSE TO BE TERMINATED
33
ANY AND ALL EXISTING DISCUSSIONS OR NEGOTIATIONS WITH ANY PARTIES CONDUCTED
HERETOFORE WITH RESPECT TO AN ACQUISITION PROPOSAL AND PROMPTLY REQUEST THAT ALL
CONFIDENTIAL INFORMATION WITH RESPECT THERETO FURNISHED ON BEHALF OF THE COMPANY
BE RETURNED.
(B)
THE COMPANY SHALL, AS PROMPTLY AS
PRACTICABLE (AND IN NO EVENT LATER THAN ONE BUSINESS DAY