(3) BUSINESS DAY PERIOD
PRIOR TO ITS EFFECTING THE ACTIONS SPECIFIED ABOVE, THE COMPANY (AS DIRECTED BY
THE BOARD OF DIRECTORS) AND ITS REPRESENTATIVES SHALL NEGOTIATE IN GOOD FAITH
WITH THE PURCHASER REGARDING A POSSIBLE RESPONSE PROPOSAL TO BE SUBMITTED BY THE
PURCHASER.
THE COMPANY ACKNOWLEDGES AND AGREES THAT EACH SUCCESSIVE MATERIAL
MODIFICATION OF A SUPERIOR ACQUISITION PROPOSAL SHALL BE DEEMED TO CONSTITUTE A
NEW SUPERIOR ACQUISITION PROPOSAL FOR PURPOSES OF THIS SECTION 5.2.
"SUPERIOR
ACQUISITION PROPOSAL" MEANS ANY WRITTEN PROPOSAL MADE BY ANY PERSON (OTHER THAN
THE PURCHASER OR ITS SUBSIDIARIES) TO ACQUIRE AT LEAST 75% OF THE EQUITY
SECURITIES OR CONSOLIDATED ASSETS OF THE COMPANY, PURSUANT TO A TENDER OR
EXCHANGE OFFER, A MERGER, A CONSOLIDATION, A LIQUIDATION OR DISSOLUTION, A
RECAPITALIZATION, OR A SALE OF ITS ASSETS, (X) ON TERMS WHICH THE BOARD OF
DIRECTORS DETERMINES IN GOOD FAITH AFTER CONSULTATION WITH ITS OUTSIDE COUNSEL
AND FINANCIAL ADVISOR TO BE MORE FAVORABLE FROM A FINANCIAL POINT OF VIEW TO THE
COMPANY'S STOCKHOLDERS THAN THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
THE OTHER TRANSACTION AGREEMENTS, TAKING INTO ACCOUNT ALL THE TERMS AND
CONDITIONS OF SUCH PROPOSAL AND THIS AGREEMENT (INCLUDING ANY RESPONSE PROPOSAL
BY THE PURCHASER) AND (Y) THAT IS REASONABLY CAPABLE OF BEING COMPLETED, TAKING
INTO ACCOUNT ALL FINANCIAL, REGULATORY, LEGAL AND OTHER ASPECTS OF SUCH
PROPOSAL.
5.3
REGULATORY APPROVAL; LITIGATION.
(A)
EACH
OF THE PURCHASER AND THE COMPANY AGREES THAT IT WILL USE ITS REASONABLE EFFORTS
TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS AND TO DO, OR CAUSE TO BE DONE, AND
TO ASSIST AND COOPERATE WITH THE OTHER PARTY IN DOING ALL THINGS, WHICH MAY BE
REQUIRED TO OBTAIN ALL NECESSARY ACTIONS OR NON-ACTIONS, WAIVERS, CONSENTS AND
APPROVAL FROM
*CONFIDENTIAL TREATMENT REQUESTED
36
GOVERNMENTAL AUTHORITIES REQUIRED TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY
THE TRANSACTION AGREEMENTS; PROVIDED, HOWEVER, THAT, IN CONNECTION WITH
OBTAINING ANY SUCH ACTION, NON-ACTION, WAIVER, CONSENT OR APPROVAL, THE
PURCHASER SHALL NOT BE REQUIRED TO AGREE, AND THE COMPANY, WITHOUT THE WRITTEN
CONSENT OF THE PURCHASER SHALL NOT AGREE, TO ANY CONDITION OR ACTION THAT THE
PURCHASER REASONABLY BELIEVES WOULD, INDIVIDUALLY OR IN THE AGGREGATE, ADVERSELY
AFFECT PURCHASER'S ABILITY TO OBTAIN THE BENEFITS (FINANCIAL OR OTHERWISE) OF
THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION AGREEMENTS.
(B)
THE COMPANY WILL ACT DILIGENTLY AND
REASONABLY IN ATTEMPTING TO OBTAIN, BEFORE THE CLOSING DATE, THE CONSENT,
APPROVAL OR WAIVER, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
PURCHASER, FROM ANY PARTY TO ANY COMPANY AGREEMENT REQUIRED TO BE OBTAINED TO
ASSIGN OR TRANSFER ANY SUCH AGREEMENTS TO THE PURCHASE OR TO OTHERWISE SATISFY
THE CONDITIONS SET FORTH IN SECTION 7.1; PROVIDED, THAT NEITHER THE COMPANY NOR
THE PURCHASER SHALL HAVE ANY OBLIGATION TO OFFER OR PAY ANY CONSIDERATION IN
ORDER TO OBTAIN ANY SUCH CONSENTS OR APPROVALS; AND PROVIDED, FURTHER, THAT THE
COMPANY, WITHOUT THE WRITTEN CONSENT OF THE PURCHASER, SHALL NOT MAKE ANY
AGREEMENT OR UNDERSTANDING, AGREE TO ANY CONDITION OR ACTION THAT THE PURCHASER
REASONABLY BELIEVES WOULD, INDIVIDUALLY OR IN THE