CONNECTION WITH THE
MERGER, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE
STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE,
NOT MISLEADING.
THE COMPANY AND PARENT WILL CAUSE THE
-31-
FORM S-4 TO COMPLY AS TO FORM IN ALL MATERIAL RESPECTS WITH THE APPLICABLE
PROVISIONS OF THE SECURITIES ACT AND THE RULES AND REGULATIONS THEREUNDER,
EXCEPT THAT NEITHER THE COMPANY NOR PARENT MAKES ANY COVENANT OTHER THAN WITH
RESPECT TO STATEMENTS MADE OR INCORPORATED BY REFERENCE BASED ON INFORMATION
SUPPLIED BY SUCH PARTY SPECIFICALLY FOR INCLUSION OR INCORPORATION BY REFERENCE
THEREIN.
6.4.
STOCKHOLDERS MEETING.
THE COMPANY WILL TAKE, IN ACCORDANCE WITH
APPLICABLE LAW AND ITS CERTIFICATE OF INCORPORATION AND BY-LAWS, ALL ACTION
NECESSARY TO CALL, HOLD AND CONVENE A MEETING OF HOLDERS OF SHARES (THE
"STOCKHOLDERS MEETING") AS PROMPTLY AS REASONABLY PRACTICABLE AFTER THE S-4
REGISTRATION STATEMENT IS DECLARED EFFECTIVE TO CONSIDER AND VOTE UPON THE
APPROVAL OF THIS AGREEMENT.
EXCEPT ON THE DETERMINATION OF THE OCCURRENCE OF A
SUPERIOR PROPOSAL AND DURING SUCH TIME AS THERE REMAINS A SUPERIOR PROPOSAL OR
AS THE COMPANY'S BOARD OF DIRECTORS MAY DETERMINE IN GOOD FAITH (AFTER
CONSULTATION WITH ITS OUTSIDE LEGAL COUNSEL) IN ORDER TO COMPLY WITH ITS
FIDUCIARY DUTIES UNDER APPLICABLE LAW, THE COMPANY'S BOARD OF DIRECTORS SHALL
RECOMMEND SUCH APPROVAL, THE COMPANY'S BOARD OF DIRECTORS SHALL NOT AMEND,
MODIFY, WITHDRAW, CONDITION OR QUALIFY SUCH RECOMMENDATION AND SHALL TAKE ALL
LAWFUL ACTION TO SOLICIT SUCH APPROVAL.
THE COMPANY AGREES THAT IT WILL PROVIDE
PARENT WITH AT LEAST 48 HOURS PRIOR NOTICE OF THE COMPANY'S BOARD OF DIRECTOR'S
INTENTION TO MAKE ANY SUCH AMENDMENT, MODIFICATION, WITHDRAWAL, CONDITION OR
QUALIFICATION; PROVIDED, HOWEVER, THAT SUCH NOTICE SHALL NOT BE REQUIRED TO THE
EXTENT THAT THE COMPANY'S BOARD OF DIRECTORS DETERMINES (AFTER CONSULTATION WITH
ITS OUTSIDE LEGAL COUNSEL) THAT SUCH NOTICE VIOLATES ITS FIDUCIARY DUTIES OR
WOULD CAUSE THE COMPANY TO VIOLATE ANY APPLICABLE LAW.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, THE OBLIGATION OF THE COMPANY TO CONVENE A
STOCKHOLDERS MEETING SHALL NOT BE LIMITED OR OTHERWISE AFFECTED BY THE
COMMENCEMENT, DISCLOSURE, ANNOUNCEMENT OR SUBMISSION TO IT OF ANY ACQUISITION
PROPOSAL, OR BY ANY CHANGE OF RECOMMENDATION OF THE COMPANY'S BOARD OF
DIRECTORS.
THE COMPANY SHALL NOT SUBMIT TO THE VOTE OF ITS STOCKHOLDERS ANY
ACQUISITION PROPOSAL OR PROPOSE TO DO SO.
6.5.
FILINGS; OTHER ACTIONS; NOTIFICATION.
(A) THE COMPANY AND PARENT
SHALL PROMPTLY PREPARE AND FILE WITH THE SEC THE PROSPECTUS/PROXY STATEMENT, AND
PARENT SHALL PREPARE AND FILE WITH THE SEC THE S-4 REGISTRATION STATEMENT AS
PROMPTLY AS PRACTICABLE AFTER THE DATE HEREOF.
PARENT AND THE COMPANY EACH
SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO HAVE THE S-4 REGISTRATION
STATEMENT DECLARED EFFECTIVE UNDER THE SECURITIES ACT AS PROMPTLY AS PRACTICABLE
AFTER SUCH FILING, AND PROMPTLY THEREAFTER MAIL THE PROSPECTUS/PROXY STATEMENT
TO THE STOCKHOLDERS OF THE COMPANY.
PARENT SHALL ALSO USE ITS COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN PRIOR TO