LIMITATIONS;
39
(P)
MAKE OR AGREE TO MAKE ANY NEW CAPITAL
EXPENDITURES OTHER THAN CAPITAL EXPENDITURES MADE IN THE ORDINARY COURSE OF
BUSINESS AND CONSISTENT WITH PAST PRACTICES WHICH INDIVIDUALLY DO NOT EXCEED
$100,000 AND WHICH IN THE AGGREGATE DO NOT EXCEED $250,000;
(Q)
(I) AMEND OR WAIVE ANY PROVISIONS OF THE
COMPANY RIGHTS AGREEMENT (OTHER THAN SUCH AMENDMENTS AS ARE NECESSARY TO
ACCOMMODATE THIS AGREEMENT AND THE TRANSACTIONS, BUT NOT WITH RESPECT TO ANY
OTHER ACQUISITION PROPOSAL) OR REDEEM ANY RIGHTS OR (II) IMPLEMENT OR ADOPT ANY
OTHER SO-CALLED "POISON PILL," SHAREHOLDER RIGHTS PLAN OR OTHER SIMILAR PLAN;
PROVIDED, HOWEVER, THAT THE COMPANY MAY DELAY THE "DISTRIBUTION DATE" (AS
DEFINED IN THE COMPANY RIGHTS AGREEMENT) AS CONTEMPLATED BY SECTION 3(A)(II) OF
THE COMPANY RIGHTS AGREEMENT TO A DATE NOT LATER THAN THE DATE DESCRIBED IN
SECTION 3(A)(I) OF THE COMPANY RIGHTS PLAN WITHOUT THE CONSENT OF PARENT; OR
(R)
AGREE IN WRITING OR OTHERWISE TO TAKE ANY
OF THE FOREGOING ACTIONS OR ANY ACTION WHICH WOULD MAKE ANY REPRESENTATION OR
WARRANTY OF THE COMPANY IN THIS AGREEMENT, THE TENDER AND OPTION AGREEMENT OR
THE TOP-UP OPTION AGREEMENT UNTRUE OR INCORRECT IN ANY MATERIAL RESPECT OR CAUSE
ANY CONDITION SET FORTH IN ANNEX A TO OCCUR OR ANY CONDITION IN ARTICLE VII TO
BE UNSATISFIED.
ARTICLE VI
COVENANTS
SECTION 6.1.
NO SOLICITATION.
(A)
FROM AND AFTER THE DATE HEREOF UNTIL THE
EFFECTIVE TIME OR THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION
8.1, NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES WILL DIRECTLY OR INDIRECTLY
INITIATE, SOLICIT OR ENCOURAGE (INCLUDING BY WAY OF FURNISHING NON-PUBLIC
INFORMATION OR ASSISTANCE), OR TAKE ANY OTHER ACTION TO FACILITATE, ANY
INQUIRIES OR THE MAKING OR SUBMISSION OF ANY ACQUISITION PROPOSAL (AS DEFINED
HEREIN) OR ENTER INTO OR MAINTAIN OR CONTINUE DISCUSSIONS OR NEGOTIATE WITH ANY
PERSON OR GROUP IN FURTHERANCE OF SUCH INQUIRIES OR TO OBTAIN OR INDUCE ANY
PERSON OR GROUP TO MAKE OR SUBMIT AN ACQUISITION PROPOSAL OR AGREE TO OR ENDORSE
ANY ACQUISITION PROPOSAL OR ASSIST OR PARTICIPATE IN, FACILITATE OR ENCOURAGE,
ANY EFFORT OR ATTEMPT BY ANY OTHER PERSON OR GROUP TO DO OR SEEK ANY OF THE
FOREGOING OR AUTHORIZE OR PERMIT ANY OF ITS OFFICERS, DIRECTORS OR EMPLOYEES OR
ANY OF ITS SUBSIDIARIES OR AFFILIATES OR ANY INVESTMENT BANKER, FINANCIAL
ADVISOR, ATTORNEY, ACCOUNTANT OR OTHER REPRESENTATIVE OR AGENT RETAINED BY IT OR
ANY OF ITS SUBSIDIARIES TO TAKE ANY SUCH ACTION; PROVIDED, HOWEVER, THAT NOTHING
CONTAINED IN THIS AGREEMENT SHALL PROHIBIT THE COMPANY OR THE BOARD OF DIRECTORS
OF THE COMPANY FROM, PRIOR TO THE EARLIER TO OCCUR OF ACCEPTANCE FOR PAYMENT OF
SHARES OF COMPANY COMMON STOCK PURSUANT TO THE OFFER OR ADOPTION OF THIS
AGREEMENT BY THE REQUISITE VOTE OF THE SHAREHOLDERS OF THE COMPANY, FURNISHING
INFORMATION TO OR ENTERING INTO DISCUSSIONS OR NEGOTIATIONS WITH ANY PERSON OR
ENTITY THAT MAKES AN UNSOLICITED (I.E. NOT SOLICITED AFTER THE DATE OF THIS
AGREEMENT) WRITTEN, BONA FIDE ACQUISITION PROPOSAL THAT THE BOARD OF DIRECTORS
OF THE