AFTER RECEIPT THEREOF),
ADVISE THE INVESTORS OF ANY ACQUISITION PROPOSAL, POTENTIAL ACQUISITION
PROPOSAL, OR ANY INQUIRY RECEIVED BY IT RELATING TO ANY POTENTIAL ACQUISITION
PROPOSAL (INCLUDING, WITHOUT LIMITATION, ANY ACQUISITION PROPOSAL THAT
CONSTITUTES A SUPERIOR PROPOSAL) AND OF THE MATERIAL TERMS OF ANY PROPOSAL OR
INQUIRY, INCLUDING, BUT NOT LIMITED TO, THE IDENTITY OF THE PERSON AND ITS
AFFILIATES MAKING THE SAME, THAT IT MAY RECEIVE IN RESPECT OF ANY SUCH
ACQUISITION PROPOSAL, POTENTIAL ACQUISITION PROPOSAL, OR INQUIRY, OR OF ANY
INFORMATION REQUESTED FROM IT OR OF ANY NEGOTIATIONS OR DISCUSSIONS BEING SOUGHT
TO BE INITIATED WITH IT, SHALL FURNISH TO THE INVESTORS A COPY OF ANY SUCH
PROPOSAL OR INQUIRY, IF IT IS IN WRITING, OR A REASONABLY ACCURATE WRITTEN
SUMMARY OF ANY SUCH PROPOSAL OR INQUIRY, IF IT IS NOT IN WRITING, AND SHALL KEEP
THE INVESTORS INFORMED ON A REASONABLY PROMPT BASIS WITH RESPECT TO ANY
DEVELOPMENTS WITH RESPECT TO THE FOREGOING.
(C)
IF THE COMPANY RECEIVES AN ACQUISITION
PROPOSAL WHICH WAS NOT SOLICITED IN VIOLATION OF SECTION 6.04(A) AND (I) WHICH
CONSTITUTES A SUPERIOR PROPOSAL OR (II) WHICH THE BOARD IN ITS GOOD FAITH
JUDGMENT CONCLUDES PROPOSES CONSIDERATION THAT IS MORE FAVORABLE TO THE COMPANY
AND ITS STOCKHOLDERS THAN THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND
WHICH WOULD REASONABLY BE EXPECTED TO RESULT IN A SUPERIOR PROPOSAL IN ALL OTHER
RESPECTS, THEN THE COMPANY SHALL PROMPTLY PROVIDE THE INVESTORS WRITTEN NOTICE
THAT COMPLIES WITH THE REQUIREMENTS OF SECTION 6.04(B).
ONCE THE INVESTORS HAVE
RECEIVED SUCH NOTICE, THE COMPANY MAY THEN, IN RESPONSE TO AN ACQUISITION
PROPOSAL WHICH MEETS THE CRITERIA OF THE PRECEDING SENTENCE, (X) FURNISH
INFORMATION WITH RESPECT TO THE COMPANY AND THE SUBSIDIARIES TO THE PERSON
MAKING SUCH ACQUISITION PROPOSAL PURSUANT TO A CUSTOMARY CONFIDENTIALITY
AGREEMENT, THE BENEFITS OF THE TERMS OF WHICH ARE NO MORE FAVORABLE TO THE OTHER
PARTY TO SUCH CONFIDENTIALITY AGREEMENT THAN THOSE IN PLACE WITH THE INVESTORS
AND (Y) PARTICIPATE IN DISCUSSIONS WITH RESPECT TO SUCH ACQUISITION PROPOSAL,
BUT ONLY IF, IN EACH CASE, AFTER CONSULTATION WITH OUTSIDE COUNSEL, THE BOARD
DETERMINES IN GOOD FAITH THAT TO FAIL TO PARTICIPATE IN SUCH DISCUSSIONS OR
NEGOTIATIONS, FURNISH SUCH INFORMATION OR TAKE SUCH OTHER ACTIONS WOULD
CONSTITUTE A BREACH OF THE BOARD'S FIDUCIARY OBLIGATIONS UNDER APPLICABLE LAW.
(D)
NEITHER THE BOARD NOR ANY COMMITTEE THEREOF
SHALL (I) WITHDRAW OR MODIFY, OR PROPOSE PUBLICLY TO WITHDRAW OR MODIFY, IN A
MANNER ADVERSE TO THE INVESTORS, THE APPROVAL OR RECOMMENDATION BY THE BOARD OR
SUCH COMMITTEE OF THE ISSUANCE OF THE PURCHASED SECURITIES (THE "COMPANY
RECOMMENDATION") AND THE MATTERS TO BE CONSIDERED AT THE STOCKHOLDERS' MEETING
OR (II) OTHER THAN THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, APPROVE OR
RECOMMEND, OR PROPOSE PUBLICLY TO APPROVE OR RECOMMEND, ANY ACQUISITION
PROPOSAL.
NOTHING CONTAINED IN THIS SECTION 6.04(D) SHALL PROHIBIT THE COMPANY
(X) FROM TAKING AND DISCLOSING TO ITS STOCKHOLDERS A POSITION CONTEMPLATED BY
RULE 14D-9 OR RULE 14E-2(A) PROMULGATED UNDER THE EXCHANGE ACT IF THE BOARD
DETERMINES, IN GOOD FAITH, AFTER CONSULTATION WITH OUTSIDE COUNSEL,