EACH OF THEM MAY REASONABLY
REQUEST RELATIVE TO ITS BUSINESS, ASSETS AND PROPERTY AS MAY BE REQUIRED OF EACH
OF THEM TO FILE ANY ADDITIONAL INFORMATION REQUESTED BY THE FTC OR THE ANTITRUST
DIVISION UNDER THE HSR ACT WITH RESPECT TO THE NOTIFICATIONS FILED BY THE
COMPANY AND OPTIONEE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT;
(II)
EACH OF THE COMPANY AND OPTIONEE AGREES TO
PROVIDE TO THE OTHER COPIES OF ALL CORRESPONDENCE BETWEEN IT (OR ITS ADVISORS)
AND ANY SUCH AGENCY RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS DESCRIBED
IN THIS SECTION 5.3(D);
**Portions of the Exhibit have been omitted and have been filed separately
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as amended.
45
(III)
THE COMPANY AND OPTIONEE AGREE THAT ALL
TELEPHONIC CALLS AND MEETINGS WITH SUCH AGENCIES REGARDING THE TRANSACTIONS
CONTEMPLATED HEREBY OR ANY OF THE MATTERS DESCRIBED IN THIS SECTION 5.3(D) SHALL
INCLUDE REPRESENTATIVES OF EACH OF THE COMPANY AND OPTIONEE; AND
(IV)
THE FILING FEES UNDER THE HSR ACT SHALL BE
BORNE BY OPTIONEE.
5.4.
CONDUCT OF BUSINESS BY THE COMPANY AND THE
SUBSIDIARIES.
(A)
THE COMPANY SHALL, AND SHALL CAUSE EACH OF
THE SUBSIDIARIES TO, OPERATE AND CARRY ON ITS BUSINESS IN THE ORDINARY COURSE
AND/OR IN A MANNER CONSISTENT WITH THE OPERATING PLAN AND, TO THE EXTENT
CONSISTENT THEREWITH, KEEP AND MAINTAIN ITS ASSETS AND PROPERTIES IN GOOD
OPERATING CONDITION AND USE ITS COMMERCIALLY REASONABLE EFFORTS CONSISTENT WITH
GOOD BUSINESS PRACTICE TO PRESERVE INTACT ITS CURRENT BUSINESS ORGANIZATION,
KEEP AVAILABLE THE SERVICES OF ITS CURRENT OFFICERS AND EMPLOYEES AND PRESERVE
ITS RELATIONSHIPS WITH MATERIAL CUSTOMERS, SUPPLIERS, CONTRACTORS, LICENSORS,
LICENSEES AND OTHERS HAVING BUSINESS DEALINGS WITH IT (EXCEPT, IN EACH CASE,
WITH THE PRIOR WRITTEN APPROVAL OF OPTIONEE).
FOR PURPOSES OF THIS
SECTION 5.4(A) ONLY, THE PHRASE "COMMERCIALLY REASONABLE EFFORTS" MEANS THE
EXERCISE OF SUCH EFFORTS AND COMMITMENT OF SUCH RESOURCES BY A COMPANY WITH
SUBSTANTIALLY THE SAME RESOURCES (WITHOUT REGARD TO THE PORTION OF THE OPTION
CONSIDERATION RECEIVED BY THE COMPANY OR THE RIGHTS PROCEEDS OR ANY INTEREST
THEREON) AND EXPERTISE AS THE COMPANY, WITH DUE REGARD TO THE NATURE OF EFFORTS
AND COST REQUIRED FOR THE UNDERTAKING AT STAKE.
(B)
WITHOUT LIMITING THE GENERALITY OF
SECTION 5.4(A), EXCEPT AS EXPRESSLY CONTEMPLATED BY THIS AGREEMENT, AS SET FORTH
ON SCHEDULE 5.4 OR WITH THE EXPRESS WRITTEN APPROVAL OF OPTIONEE, THE COMPANY
SHALL NOT, AND SHALL NOT PERMIT ANY OF THE SUBSIDIARIES TO:
(I)
(A) DECLARE, SET ASIDE OR PAY ANY
DIVIDENDS ON, OR MAKE ANY OTHER ACTUAL, CONSTRUCTIVE OR DEEMED DISTRIBUTIONS IN
RESPECT OF, ANY OF ITS CAPITAL STOCK, OR OTHERWISE MAKE ANY PAYMENTS TO ANY
STOCKHOLDER IN ITS CAPACITY AS SUCH, PROVIDED, THAT THE COMPANY SHALL BE
ENTITLED TO DISTRIBUTE TO ITS STOCKHOLDERS, IN CASH, AN AGGREGATE AMOUNT EQUAL
TO THE PORTION OF THE OPTION CONSIDERATION THAT HAS BEEN PAID TO THE COMPANY AND
ANY RIGHTS