OR TAKE ANY ACTION INTENDED, DESIGNED OR
REASONABLY LIKELY TO FACILITATE THE EFFORTS OF ANY PERSONS, OTHER THAN PARENT
AND BUYER, RELATING TO (A) THE POSSIBLE ACQUISITION OF SELLER (WHETHER BY WAY OF
MERGER, PURCHASE OF ITS CAPITAL STOCK, PURCHASE OF ASSETS OR OTHERWISE) OR ANY
MATERIAL PORTION OF ITS CAPITAL STOCK OR ASSETS OR (B) ANY OTHER MATERIAL
TRANSACTION (INCLUDING WITHOUT LIMITATION, A JOINT VENTURE OR OTHER SIMILAR
TRANSACTION) (AN "OPPOSING PROPOSAL"); (II) FURNISH ANY NON-PUBLIC INFORMATION
REGARDING SELLER TO ANY PERSON IN CONNECTION WITH OR IN RESPONSE TO AN OPPOSING
PROPOSAL OR POTENTIAL OPPOSING PROPOSAL; (III) ENGAGE IN DISCUSSIONS WITH ANY
PERSONS WITH RESPECT TO ANY OPPOSING PROPOSAL; (IV) APPROVE, ENDORSE OR
RECOMMEND ANY OPPOSING PROPOSAL; OR (V) ENTER INTO ANY LETTER OF INTENT OR OTHER
SIMILAR DOCUMENT OR ANY CONTRACT CONTEMPLATING OR OTHERWISE RELATING TO ANY
OPPOSING PROPOSAL.
SHAREHOLDER SHALL IMMEDIATELY CEASE ANY EXISTING DISCUSSIONS
WITH ANY PERSONS OTHER THAN PARENT AND BUYER THAT RELATE TO ANY OPPOSING
PROPOSAL.
IN THE EVENT THAT SHAREHOLDER RECEIVES FROM ANY THIRD PARTY ANY OFFER
OR INDICATION OF INTEREST (WHETHER MADE IN WRITING OR OTHERWISE) REGARDING ANY
OF THE TRANSACTIONS REFERRED TO IN THE FOREGOING, THEN SHAREHOLDER SHALL
PROMPTLY COMMUNICATE TO PARENT AND BUYER THE MATERIAL TERMS OF EACH SUCH OFFER,
INDICATION OF INTEREST, OR REQUEST, INCLUDING THE IDENTITY OF THE THIRD PARTY.
5.
IRREVOCABLE PROXY.
CONCURRENTLY WITH THE EXECUTION OF THIS AGREEMENT,
SHAREHOLDER SHALL DELIVER TO PARENT A PROXY IN THE FORM ATTACHED HERETO AS
EXHIBIT A (THE "PROXY"), WHICH SHALL BE IRREVOCABLE TO THE FULLEST EXTENT
PERMISSIBLE BY LAW, WITH RESPECT TO THE SHARES.
6.
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER.
SHAREHOLDER (I)
EXCEPT FOR THE RIGHT OF FIRST REFUSAL SET FORTH IN ARTICLE 10, SECTION 1 OF THE
SELLER'S BYLAWS, IS THE SOLE RECORD AND BENEFICIAL OWNER OF THE SHARES OF COMMON
STOCK OF SELLER, PREFERRED STOCK OF SELLER AND THE OPTIONS AND WARRANTS TO
PURCHASE SHARES OF COMMON STOCK OF SELLER INDICATED ON THE SIGNATURE PAGE
HEREOF, FREE AND CLEAR OF ANY LIENS, CLAIMS, OPTIONS, RIGHTS OF FIRST REFUSAL,
CO-SALE RIGHTS, CHARGES OR OTHER ENCUMBRANCES; (II) DOES NOT BENEFICIALLY OWN
ANY SECURITIES OF SELLER OTHER THAN THE SHARES OF COMMON STOCK OF SELLER,
PREFERRED STOCK OF SELLER AND OPTIONS AND WARRANTS TO PURCHASE SHARES OF COMMON
STOCK OF SELLER INDICATED ON THE SIGNATURE PAGE OF THIS AGREEMENT; (III) HAS
FULL POWER AND AUTHORITY TO MAKE, ENTER INTO AND, ASSUMING DUE EXECUTION AND
DELIVERY
4
THEREOF BY EACH OTHER PARTY THERETO, CARRY OUT THE TERMS OF THIS AGREEMENT AND
THE PROXY; AND (IV) HAS SOLE VOTING POWER AND SOLE POWER TO ISSUE INSTRUCTIONS
WITH RESPECT TO THE MATTERS SET FORTH IN SECTION 3 HEREOF, SOLE POWER OF
DISPOSITION, SOLE POWER OF CONVERSION, SOLE POWER TO DEMAND APPRAISAL RIGHTS AND
SOLE POWER TO AGREE TO ALL OF THE MATTERS SET FORTH IN THIS VOTING AGREEMENT, IN
EACH CASE WITH RESPECT TO ALL OF THE SHARES SET FORTH ON THE SIGNATURE PAGE
HEREOF, WITH NO LIMITATIONS, QUALIFICATIONS OR RESTRICTIONS