EXPLICITLY PROVIDED IN THIS SECTION
6.03(D).
PRIOR TO THE TIME OF THE STOCKHOLDERS' MEETING, IN RESPONSE TO THE
RECEIPT OF AN UNSOLICITED BONA FIDE WRITTEN ALTERNATIVE PROPOSAL (OR, IN THE
CASE OF A PROHA PROPOSAL, PRIOR TO THE PROHA PROPOSAL TERMINATION DATE, IN
RESPONSE TO THE RECEIPT OF A BONA FIDE WRITTEN ACQUISITION PROPOSAL MADE IN A
MANNER PERMITTED BY SECTION 3(H) OF THE VOTING AGREEMENT), IF THE COMPANY HAS
COMPLIED WITH THIS SECTION 6.03 (AND, IN THE CASE OF A PROHA PROPOSAL, PROHA HAS
COMPLIED WITH SECTION 3(H) OF THE VOTING AGREEMENT) AND THE COMPANY BOARD
(I) CONCLUDES IN GOOD FAITH THAT SUCH ALTERNATIVE PROPOSAL CONSTITUTES A
SUPERIOR PROPOSAL (AND CONTINUES TO CONSTITUTE A SUPERIOR PROPOSAL AFTER TAKING
INTO ACCOUNT ANY MODIFICATIONS PROPOSED BY NEWCO DURING ANY FIVE BUSINESS DAY
PERIOD REFERRED TO BELOW), (II) AFTER CONSULTATION WITH OUTSIDE LEGAL COUNSEL,
HAS CONCLUDED IN GOOD FAITH THAT THE FAILURE TO TAKE SUCH ACTION WOULD
CONSTITUTE A BREACH BY THE COMPANY BOARD OF ITS FIDUCIARY DUTIES TO THE
STOCKHOLDERS OF THE COMPANY UNDER APPLICABLE LAW, THEN, ON THE FIFTH BUSINESS
DAY FOLLOWING NEWCO'S RECEIPT OF WRITTEN
34
NOTICE FROM THE COMPANY OF THE COMPANY BOARD'S INTENTION TO DO SO, WHICH NOTICE
SHALL DESCRIBE THE MATERIAL TERMS AND CONDITIONS OF THE SUPERIOR PROPOSAL AND
THE PARTIES THERETO (IT BEING UNDERSTOOD AND AGREED THAT ANY AMENDMENT TO THE
PRICE OR ANY OTHER MATERIAL TERM OF A SUPERIOR PROPOSAL SHALL REQUIRE A NEW
NOTICE AND A NEW FIVE BUSINESS DAY PERIOD), THE COMPANY BOARD MAY APPROVE AND
RECOMMEND SUCH SUPERIOR PROPOSAL AND, IN CONNECTION WITH SUCH SUPERIOR PROPOSAL,
WITHDRAW OR MODIFY, OR PROPOSE TO WITHDRAW OR MODIFY, THE COMPANY BOARD
RECOMMENDATION (A "CHANGE IN BOARD RECOMMENDATION"), AND (III) THE COMPANY
BOARD, CONTEMPORANEOUSLY WITH THE TERMINATION OF THIS AGREEMENT PURSUANT TO
SECTION 8.1(G), CAUSES THE COMPANY TO ENTER INTO A BINDING AGREEMENT WITH
RESPECT TO SUCH SUPERIOR PROPOSAL; PROVIDED, IN EACH CASE, THAT DURING THE
APPLICABLE FIVE BUSINESS DAY PERIOD, THE COMPANY SHALL BE OBLIGATED TO NEGOTIATE
IN GOOD FAITH WITH PARENT AND NEWCO AND THEIR REPRESENTATIVES, AFFILIATES AND
EQUITY INVESTORS (TO THE EXTENT NEWCO DESIRES TO NEGOTIATE) TO MAKE SUCH
ADJUSTMENTS IN THE TERMS AND CONDITIONS OF THIS AGREEMENT SO THAT SUCH
ALTERNATIVE PROPOSAL WOULD NO LONGER BE DETERMINED IN GOOD FAITH BY THE COMPANY
BOARD, IN CONSULTATION WITH ITS FINANCIAL ADVISORS, TO BE A SUPERIOR PROPOSAL.
(E)
THE COMPANY AND THE COMPANY BOARD MAY TAKE AND DISCLOSE TO THE COMPANY'S
STOCKHOLDERS A POSITION IN ACCORDANCE WITH RULE 14E-2 UNDER THE EXCHANGE ACT
WITH RESPECT TO AN ALTERNATIVE PROPOSAL; PROVIDED THAT THE FOREGOING WILL IN NO
WAY (I) PERMIT ANY ACTION THAT WOULD OTHERWISE HAVE BEEN PROHIBITED UNDER THIS
AGREEMENT, (II) LIMIT THE OBLIGATION OF THE COMPANY TO COMPLY WITH ITS
OBLIGATIONS UNDER THIS AGREEMENT OR (III) ELIMINATE OR MODIFY THE EFFECT THAT
ANY ACTION TAKEN OR DISCLOSURE MADE IN ACCORDANCE WITH SUCH RULE WOULD HAVE
UNDER THIS AGREEMENT.
SECTION 6.04.
EMPLOYEE BENEFITS MATTERS.
EXCEPT AS CONTEMPLATED HEREIN, FOR
THE PERIOD ENDING