AGREEMENT, AND
TO COOPERATE, SUBJECT TO COMPLIANCE WITH APPLICABLE LAW, WITH EACH OTHER IN
CONNECTION WITH THE FOREGOING, INCLUDING USING ITS COMMERCIALLY REASONABLE BEST
EFFORTS (I) TO OBTAIN ALL NECESSARY WAIVERS, CONSENTS AND APPROVALS FROM OTHER
PARTIES TO LOAN AGREEMENTS, MATERIAL LEASES AND OTHER MATERIAL CONTRACTS,
(II) TO OBTAIN ALL NECESSARY CONSENTS, APPROVALS AND AUTHORIZATIONS AS ARE
REQUIRED TO BE OBTAINED UNDER ANY UNITED STATES FEDERAL OR STATE, FOREIGN LAW OR
REGULATIONS, (III) TO DEFEND ALL LAWSUITS OR OTHER LEGAL PROCEEDINGS CHALLENGING
THIS AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY,
(IV) TO LIFT OR RESCIND ANY INJUNCTION OR RESTRAINING ORDER OR OTHER ORDER
ADVERSELY AFFECTING THE ABILITY OF THE PARTIES TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY, (V) TO EFFECT ALL NECESSARY REGISTRATIONS AND FILINGS AND
SUBMISSIONS OF INFORMATION REQUESTED BY GOVERNMENTAL ENTITIES, AND (VI) TO
FULFILL ALL CONDITIONS TO THIS AGREEMENT.
(B)
EACH OF THE PARTIES HERETO AGREES, SUBJECT
TO COMPLIANCE WITH APPLICABLE LAW, TO FURNISH TO EACH OTHER PARTY HERETO SUCH
NECESSARY INFORMATION AND REASONABLE ASSISTANCE AS SUCH OTHER PARTY MAY REQUEST
IN CONNECTION WITH ITS PREPARATION OF NECESSARY FILINGS OR SUBMISSIONS TO ANY
REGULATORY OR GOVERNMENTAL AGENCY OR AUTHORITY, INCLUDING, WITHOUT LIMITATION,
ANY FILING NECESSARY UNDER THE PROVISIONS OF THE HSR ACT, THE EXCHANGE ACT, THE
SECURITIES ACT OR ANY OTHER UNITED STATES FEDERAL OR STATE, OR FOREIGN STATUTE
OR REGULATION.
EACH PARTY HERETO SHALL PROMPTLY INFORM EACH OTHER PARTY OF ANY
MATERIAL COMMUNICATION FROM THE U.S. FEDERAL TRADE COMMISSION OR ANY OTHER
GOVERNMENT OR GOVERNMENTAL AUTHORITY REGARDING ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
5.5.
PUBLICITY.
PARENT AND THE COMPANY WILL MUTUALLY
CONSULT CONCERNING THE NEWS RELEASE FIRST ANNOUNCING THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY, WHICH SHALL BE A JOINT NEWS RELEASE.
NEITHER
PARTY SHALL ISSUE ANY SUCH NEWS RELEASE OR OTHER ANNOUNCEMENT WITHOUT THE
CONSENT OF THE OTHER PARTY. THEREAFTER, WITHOUT THE CONSENT OF THE PARENT, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED, THE COMPANY AND/OR ITS
SUBSIDIARIES WILL NOT, AND WILL NOT PERMIT ANY OF THEIR RESPECTIVE AFFILIATES OR
REPRESENTATIVES TO, ISSUE OR CAUSE THE PUBLICATION OF ANY NEWS RELEASE OR MAKE
ANY OTHER PUBLIC ANNOUNCEMENT WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW OR BY OBLIGATIONS
PURSUANT TO ANY LISTING AGREEMENT WITH THE NASDAQ STOCK MARKET, IN WHICH CASE
THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE BEST EFFORTS TO CONSULT WITH
PARENT AND TO PROVIDE PARENT WITH A COPY OF SUCH NEWS RELEASE OR OTHER
ANNOUNCEMENT AND AFFORD PARENT THE OPPORTUNITY TO COMMENT THEREON PRIOR TO
PUBLICATION.
28
5.6.
No Solicitation.
(A)
IMMEDIATELY UPON EXECUTION OF THIS
AGREEMENT, THE COMPANY SHALL (AND SHALL CAUSE ITS OFFICERS, DIRECTORS,
EMPLOYEES, INVESTMENT BANKERS, ATTORNEYS AND OTHER AGENTS OR REPRESENTATIVES TO)
CEASE ALL DISCUSSIONS, NEGOTIATIONS, RESPONSES TO INQUIRIES (EXCEPT AS SET FORTH
IN THE PROVISO TO THIS SENTENCE) AND OTHER COMMUNICATIONS RELATING TO ANY
POTENTIAL BUSINESS COMBINATION WITH ALL THIRD PARTIES WHO, PRIOR TO THE DATE
HEREOF, MAY HAVE EXPRESSED OR OTHERWISE INDICATED ANY INTEREST