AN EXECUTED CONFIDENTIALITY AGREEMENT ON TERMS NO LESS FAVORABLE TO
THE COMPANY THAN THE CONFIDENTIALITY AGREEMENT, A COPY OF WHICH SHALL BE
PROVIDED ONLY FOR INFORMATIONAL PURPOSES TO THE PURCHASER AND (B) THE BOARD OF
DIRECTORS SHALL HAVE CONCLUDED IN GOOD FAITH, AFTER CONSULTING WITH ITS OUTSIDE
FINANCIAL ADVISORS AND COUNSEL, THAT SUCH ACQUISITION PROPOSAL IS REASONABLY
LIKELY TO BE OR TO RESULT IN A SUPERIOR ACQUISITION PROPOSAL (AS DEFINED
BELOW).
IF, PRIOR TO THE CLOSING, THE BOARD OF DIRECTORS RECEIVES AN
ACQUISITION PROPOSAL, THE COMPANY SHALL PROMPTLY (AND IN NO EVENT LATER THAN 24
HOURS AFTER RECEIPT OF SUCH ACQUISITION PROPOSAL) INFORM THE PURCHASER IN
WRITING OF THE TERMS AND CONDITIONS OF SUCH PROPOSAL AND THE IDENTITY OF THE
PERSON MAKING IT, AND WILL KEEP THE PURCHASER INFORMED, ON A CURRENT BASIS, OF
THE STATUS AND TERMS OF ANY SUCH PROPOSALS OR OFFERS BY ANY PERSON (WHETHER
WRITTEN OR ORAL).
THE COMPANY WILL, AND WILL CAUSE ITS AFFILIATES TO,
IMMEDIATELY CEASE AND CAUSE TO BE TERMINATED ANY ACTIVITIES, DISCUSSIONS OR
*CONFIDENTIAL TREATMENT REQUESTED
35
NEGOTIATIONS EXISTING AS OF THE DATE HEREOF WITH ANY PERSONS (OTHER THAN THE
PURCHASER AND ITS AFFILIATES) CONDUCTED HERETOFORE WITH RESPECT TO ANY
ACQUISITION PROPOSAL, AND REQUEST THE RETURN OR DESTRUCTION OF ALL NON-PUBLIC
INFORMATION FURNISHED IN CONNECTION THEREWITH.
THE COMPANY SHALL NOT RELEASE
ANY THIRD PARTY FROM, OR WAIVE ANY PROVISIONS OF, ANY CONFIDENTIALITY OR
STANDSTILL AGREEMENT TO WHICH SUCH PARTY OR ITS SUBSIDIARIES IS A PARTY.
IF,
PRIOR TO THE CLOSING, THE BOARD OF DIRECTORS RECEIVES A SUPERIOR ACQUISITION
PROPOSAL THAT WAS NOT INITIATED, SOLICITED, ENCOURAGED OR FACILITATED IN BREACH
OF THIS AGREEMENT AND THE BOARD OF DIRECTORS DETERMINES IN GOOD FAITH, AFTER
CONSULTATION WITH OUTSIDE COUNSEL, THAT IT IS NECESSARY TO DO SO IN ORDER TO
COMPLY WITH THE DIRECTORS' FIDUCIARY OBLIGATIONS TO THE COMPANY'S STOCKHOLDERS
UNDER APPLICABLE REQUIREMENTS OF LAW, THE BOARD OF DIRECTORS MAY TERMINATE THIS
AGREEMENT AND CAUSE THE COMPANY TO ENTER INTO AN ACQUISITION AGREEMENT WITH
RESPECT TO THE SUPERIOR ACQUISITION PROPOSAL; PROVIDED, THAT THE COMPANY SHALL
NOT BE ENTITLED TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 5.2 IF THE
COMPANY IS NOT IN COMPLIANCE WITH THE PROCESS OF THIS SECTION 5.2; PROVIDED,
FURTHER, THAT THE BOARD OF DIRECTORS MAY NOT TAKE THE ACTIONS SPECIFIED ABOVE
UNLESS (1) THE BOARD OF DIRECTORS SHALL HAVE FIRST PROVIDED PRIOR WRITTEN NOTICE
TO THE PURCHASER OF ITS INTENTION TO TAKE SUCH ACTIONS, WHICH NOTICE SHALL
DESCRIBE THE MATERIAL TERMS OF THE TRANSACTION THAT CONSTITUTES SUCH SUPERIOR
ACQUISITION PROPOSAL, AND SHALL ATTACH THE MOST CURRENT DRAFT OF ANY WRITTEN
AGREEMENT RELATING THERETO (IF AVAILABLE) AND (2) THE PURCHASER DOES NOT MAKE,
WITHIN THREE (3) BUSINESS DAYS AFTER THE RECEIPT OF SUCH NOTICE, A REVISED OFFER
THAT THE BOARD OF DIRECTORS DETERMINES, IN GOOD FAITH, AFTER CONSULTATION WITH
OUTSIDE COUNSEL AND ITS FINANCIAL ADVISOR, IS AT LEAST AS FAVORABLE TO THE
STOCKHOLDERS OF THE COMPANY AS SUCH SUPERIOR ACQUISITION PROPOSAL (A "RESPONSE
PROPOSAL").
THE COMPANY AGREES THAT DURING THE THREE