COMPANY.
THIS AGREEMENT MAY
BE TERMINATED AND THE MERGER MAY BE ABANDONED AT ANY TIME PRIOR TO THE EFFECTIVE
TIME BY ACTION OF THE BOARD OF DIRECTORS OF EITHER PARENT OR THE COMPANY IF
(I) THE MERGER SHALL NOT HAVE BEEN CONSUMMATED BY DECEMBER 31, 2002, WHETHER
SUCH DATE IS BEFORE OR AFTER THE DATE OF APPROVAL BY THE STOCKHOLDERS OF THE
COMPANY; PROVIDED, HOWEVER, THAT IF EITHER PARTY DETERMINES THAT ADDITIONAL TIME
IS NECESSARY IN ORDER TO FORESTALL ANY ACTION TO RESTRAIN, ENJOIN OR PROHIBIT
THE MERGER BY ANY FEDERAL, STATE, LOCAL OR FOREIGN COURT OR GOVERNMENTAL ENTITY
WITH JURISDICTION OVER ENFORCEMENT OF ANY APPLICABLE ANTITRUST LAWS, THE
TERMINATION DATE MAY BE EXTENDED BY SUCH PARTY TO A DATE NOT BEYOND MARCH 31,
2003 (THE "TERMINATION DATE"); PROVIDED, FURTHER, THAT THE RIGHT TO TERMINATE
THIS AGREEMENT PURSUANT TO THIS CLAUSE (I) SHALL NOT BE AVAILABLE TO ANY PARTY
THAT HAS BREACHED IN ANY MATERIAL RESPECT ITS OBLIGATIONS UNDER THIS AGREEMENT
IN ANY MANNER THAT SHALL HAVE PROXIMATELY CAUSED THE OCCURRENCE OF THE FAILURE
OF THE MERGER TO BE CONSUMMATED; (II) THE APPROVAL OF THE COMPANY'S STOCKHOLDERS
REQUIRED BY SECTION 7.1(A) SHALL NOT HAVE BEEN OBTAINED AT A MEETING DULY
CONVENED THEREFOR OR AT ANY ADJOURNMENT OR POSTPONEMENT THEREOF; OR (III) ANY
ORDER PERMANENTLY RESTRAINING, ENJOINING OR OTHERWISE PROHIBITING CONSUMMATION
OF THE MERGER SHALL BECOME FINAL AND
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NON-APPEALABLE (WHETHER BEFORE OR AFTER THE APPROVAL BY THE STOCKHOLDERS OF THE
COMPANY).
IF A PARTY (THE "EXTENDING PARTY") ELECTS TO EXTEND THE TERMINATION
DATE PURSUANT TO THE FIRST PROVISO OF THIS SECTION 8.2, THEN THE OTHER PARTY
(THE "NON-EXTENDING PARTY") MAY DELIVER THE EXTENDING PARTY A WRITTEN UPDATE OF
ITS COMPANY DISCLOSURE LETTER OR PARENT DISCLOSURE LETTER, AS THE CASE MAY BE,
WITHIN THREE BUSINESS DAYS OF SUCH ELECTION TO REFLECT NEW FACTS OCCURRING AFTER
THE DATE HEREOF TOGETHER WITH A WRITTEN REQUEST THAT THE EXTENDING PARTY CONFIRM
THAT SUCH NEW FACTS SHALL NOT BE DEEMED TO RENDER ANY OF THE NON-EXTENDING
PARTY'S REPRESENTATIONS AND WARRANTIES UNTRUE OR INCORRECT AS OF SUCH DATE OR
DEEMED TO CONSTITUTE A COMPANY MATERIAL ADVERSE EFFECT OR A PARENT MATERIAL
ADVERSE EFFECT, AS THE CASE MAY BE, AS OF SUCH DATE.
IF THE EXTENDING PARTY
DOES NOT PROVIDE SUCH CONFIRMATION PRIOR TO THE FIFTH BUSINESS DAY AFTER
RECEIVING SUCH WRITTEN UPDATE, THEN THE TERMINATION DATE SHALL NOT BE EXTENDED.
8.3.
TERMINATION BY THE COMPANY.
THIS AGREEMENT MAY BE TERMINATED AND
THE MERGER MAY BE ABANDONED AT ANY TIME PRIOR TO THE EFFECTIVE TIME, WHETHER
BEFORE OR AFTER THE APPROVAL BY STOCKHOLDERS OF THE COMPANY REFERRED TO IN
SECTION 7.1(A), BY ACTION OF THE BOARD OF DIRECTORS OF THE COMPANY IF THERE HAS
BEEN A BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT MADE BY
PARENT OR MERGER SUB IN THIS AGREEMENT, OR ANY SUCH REPRESENTATION AND WARRANTY
SHALL HAVE BECOME UNTRUE AFTER THE DATE OF THIS AGREEMENT, SUCH THAT SECTION
7.3(A) OR 7.3(B), AS APPLICABLE, WOULD NOT BE SATISFIED AND SUCH BREACH OR
CONDITION