FORTH IN A
SUPPLEMENT TO THE PROXY STATEMENT, BUYER SHALL PROMPTLY INFORM SELLER.
(D) BUYER AND SELLER SHALL MAKE ALL NECESSARY FILINGS WITH RESPECT TO THE
TRANSACTION UNDER THE SECURITIES ACT, THE EXCHANGE ACT, APPLICABLE STATE BLUE
SKY LAWS AND THE RULES AND REGULATIONS THEREUNDER.
SECTION 5.3
ACCESS TO INFORMATION.
UPON REASONABLE NOTICE, SELLER SHALL AFFORD TO BUYER'S OFFICERS, EMPLOYEES,
ACCOUNTANTS, COUNSEL AND OTHER REPRESENTATIVES, REASONABLE ACCESS, DURING NORMAL
BUSINESS HOURS DURING THE PERIOD PRIOR TO THE CLOSING, TO ALL ITS PROPERTIES,
BOOKS, CONTRACTS, COMMITMENTS AND RECORDS RELATING TO THE MAMMOGRAPHY
INTELLECTUAL PROPERTY AND, DURING SUCH PERIOD, SELLER SHALL FURNISH PROMPTLY TO
BUYER (A) A COPY OF EACH REPORT, SCHEDULE, REGISTRATION STATEMENT AND OTHER
DOCUMENT FILED OR RECEIVED BY IT DURING SUCH PERIOD PURSUANT TO THE REQUIREMENTS
OF FEDERAL SECURITIES LAWS AND (B) ALL OTHER INFORMATION CONCERNING ITS
BUSINESS, PROPERTIES AND PERSONNEL AS BUYER MAY REASONABLY REQUEST.
UNLESS
OTHERWISE REQUIRED BY LAW, BUYER WILL AND SHALL CAUSE ITS OFFICERS, EMPLOYEES,
ACCOUNTANTS, COUNSEL AND OTHER REPRESENTATIVES OR PERSONS WHO HAVE ACCESS TO
SUCH INFORMATION TO HOLD ANY SUCH INFORMATION WHICH IS NON-PUBLIC IN CONFIDENCE
IN ACCORDANCE WITH THE CONFIDENTIALITY AGREEMENT.
NO INFORMATION OR KNOWLEDGE
OBTAINED IN ANY INVESTIGATION PURSUANT TO THIS SECTION 5.3 OR OTHERWISE SHALL
AFFECT OR BE DEEMED TO MODIFY ANY REPRESENTATION OR WARRANTY CONTAINED IN THIS
AGREEMENT OR THE CONDITIONS TO THE OBLIGATIONS OF THE PARTIES TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 5.4
SELLER MEETING.
THE SELLER, ACTING THROUGH ITS BOARD OF DIRECTORS, SHALL, SUBJECT TO AND IN
ACCORDANCE WITH APPLICABLE LAW AND ITS CHARTER AND BYLAWS, PROMPTLY AND DULY
CALL, GIVE NOTICE OF, CONVENE AND HOLD AS SOON AS PRACTICABLE FOLLOWING THE DATE
ON WHICH THE REGISTRATION STATEMENT BECOMES EFFECTIVE THE SELLER MEETING FOR THE
PURPOSE OF VOTING TO APPROVE THIS AGREEMENT AND THE SALE OF SUBSTANTIALLY ALL
THE ASSETS OF SELLER AS CONTEMPLATED HEREBY (THE "SELLER VOTING PROPOSAL").
THE
BOARD OF DIRECTORS OF THE SELLER SHALL (I) RECOMMEND APPROVAL OF THE SELLER
VOTING PROPOSAL BY THE STOCKHOLDERS OF THE SELLER AND INCLUDE IN THE PROXY
STATEMENT SUCH RECOMMENDATION AND (II) TAKE ALL REASONABLE AND LAWFUL ACTION TO
SOLICIT AND OBTAIN SUCH APPROVAL.
NOTWITHSTANDING THE FOREGOING, THE BOARD OF
DIRECTORS OF SELLER MAY WITHDRAW OR MODIFY ITS RECOMMENDATION IN ORDER TO
RESPOND TO, OR OTHERWISE FACILITATE THE CONSUMMATION OF AN ACQUISITION PROPOSAL,
IF, AND ONLY IF, (A) THE BOARD OF DIRECTORS OF SELLER HAS RECEIVED A SUPERIOR
PROPOSAL, (B) SUCH BOARD OF DIRECTORS DETERMINES AFTER CONSULTATION WITH ITS
OUTSIDE LEGAL COUNSEL THAT IT IS NECESSARY TO WITHDRAW OR MODIFY SUCH
RECOMMENDATION, IN ORDER TO COMPLY WITH ITS FIDUCIARY DUTIES UNDER APPLICABLE
LAW, TO RECOMMEND SUCH SUPERIOR PROPOSAL TO THE STOCKHOLDERS OF SELLER AND
(C) SELLER HAS COMPLIED WITH THE PROVISIONS OF SECTION 5.1, IN ALL OTHER
INSTANCES THE BOARD OF DIRECTORS OF SELLER MAY WITHDRAW OR MODIFY SUCH
RECOMMENDATION IF, AND ONLY IF, SUCH BOARD OF DIRECTORS DETERMINES AFTER
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CONSULTATION WITH ITS OUTSIDE LEGAL COUNSEL THAT IT IS NECESSARY TO WITHDRAW OR
MODIFY SUCH