TO CEASE BEING A WHOLLY-OWNED DIRECT SUBSIDIARY OF
PARENT;
(II)
TAKE ANY ACTION THAT WOULD REASONABLY BE EXPECTED TO RESULT IN
ANY OF THE CONDITIONS SET FORTH IN SECTION 5.2 OR 5.1 NOT BEING SATISFIED IN A
TIMELY MANNER AS CONTEMPLATED BY THIS AGREEMENT; OR
33
(III)
AUTHORIZE, RECOMMEND, PROPOSE OR ANNOUNCE AN INTENTION TO DO ANY
OF THE FOREGOING, OR ENTER INTO ANY CONTRACT, AGREEMENT, COMMITMENT OR
ARRANGEMENT TO DO ANY OF THE FOREGOING.
SECTION 4.9
PUBLIC ANNOUNCEMENTS.
PARENT AND THE COMPANY SHALL
CONSULT WITH EACH OTHER BEFORE ISSUING ANY PRESS RELEASE OR OTHERWISE MAKING ANY
PUBLIC STATEMENTS WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, AND SHALL NOT ISSUE ANY SUCH PRESS RELEASE OR MAKE ANY SUCH PUBLIC
STATEMENT PRIOR TO REACHING MUTUAL AGREEMENT ON THE LANGUAGE OF SUCH PRESS
RELEASE OR SUCH PUBLIC STATEMENT, EXCEPT AS MAY OTHERWISE BE REQUIRED BY
APPLICABLE LAW, REGULATION OR STOCK EXCHANGE RULE.
SECTION 4.10
NO SOLICITATION.
(A)
IT IS UNDERSTOOD AND AGREED THAT THE COMPANY, TOGETHER WITH
CITIGROUP, WILL CONTINUE THE COMPANY'S AUCTION PROCESS FOR THE COMPANY'S ASSETS
(THE "ASSET AUCTION") UNTIL NOVEMBER 30, 2005.
FROM AND AFTER DECEMBER 1, 2005,
HOWEVER, THE COMPANY SHALL NOT, NOR SHALL IT PERMIT ANY OF ITS SUBSIDIARIES TO,
NOR SHALL IT AUTHORIZE OR PERMIT ANY OFFICER, DIRECTOR OR EMPLOYEE OF OR ANY
INVESTMENT BANKER, ATTORNEY, ACCOUNTANT, AGENT OR OTHER ADVISOR OR
REPRESENTATIVE OF THE COMPANY OR ANY OF ITS SUBSIDIARIES TO, (I) SOLICIT,
INITIATE, ENCOURAGE OR TAKE ANY OTHER ACTION FOR THE PURPOSE OF FACILITATING
(INCLUDING BY WAY OF FURNISHING OR DISCLOSING INFORMATION), ANY TAKEOVER
PROPOSAL (AS DEFINED BELOW), (II) EXCEPT TO THE EXTENT PERMITTED BY THIS
SECTION 4.10, ENTER INTO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING (INCLUDING
ANY LETTER OF INTENT, AGREEMENT IN PRINCIPLE, MEMORANDUM OF UNDERSTANDING OR
CONFIDENTIALITY AGREEMENT) WITH RESPECT TO ANY TAKEOVER PROPOSAL OR REQUIRING
THE COMPANY TO ABANDON, TERMINATE OR FAIL TO CONSUMMATE, OR WHICH IS INTENDED TO
OR WOULD REASONABLY BE EXPECTED TO RESULT IN THE ABANDONMENT OR TERMINATION OF,
OR FAILURE TO CONSUMMATE, THE MERGER OR ANY OTHER TRANSACTION CONTEMPLATED BY
THIS AGREEMENT, (III) INITIATE OR PARTICIPATE IN ANY DISCUSSIONS OR NEGOTIATIONS
REGARDING, OR FURNISH TO ANY PERSON ANY INFORMATION WITH RESPECT TO, OR TAKE ANY
OTHER ACTION TO FACILITATE OR IN FURTHERANCE OF ANY INQUIRIES OR THE MAKING OF
ANY PROPOSAL THAT CONSTITUTES, OR MAY REASONABLY BE EXPECTED TO LEAD TO, ANY
TAKEOVER PROPOSAL OR (IV) GRANT ANY WAIVER OR RELEASE UNDER ANY STANDSTILL OR
SIMILAR AGREEMENT WITH RESPECT TO A CLASS OF THE EQUITY SECURITIES OF THE
COMPANY; PROVIDED, HOWEVER, THAT PRIOR TO THE COMPANY STOCKHOLDERS' MEETING, IN
RESPONSE TO A BONA FIDE UNSOLICITED TAKEOVER PROPOSAL (OR A BONA FIDE TAKEOVER
PROPOSAL RECEIVED PURSUANT TO THE ASSET AUCTION) RECEIVED AFTER THE DATE HEREOF
THAT THE BOARD OF DIRECTORS OF THE COMPANY BELIEVES IN GOOD FAITH (AFTER
CONSULTATION WITH OUTSIDE COUNSEL AND WITH THE COMPANY FINANCIAL ADVISOR OR
ANOTHER FINANCIAL ADVISOR OF NATIONALLY RECOGNIZED REPUTATION) CONSTITUTES OR
WOULD REASONABLY BE EXPECTED TO RESULT IN A