INVESTORS IF (I) THE BOARD SHALL HAVE
WITHDRAWN, OR ADVERSELY MODIFIED, OR FAILED WITHIN THREE BUSINESS DAYS AFTER THE
INVESTORS REQUEST TO RECONFIRM THE COMPANY RECOMMENDATION (OR DETERMINED TO DO
SO), (II) THE BOARD SHALL HAVE DETERMINED TO RECOMMEND TO THE STOCKHOLDERS OF
THE COMPANY THAT THEY APPROVE AN ACQUISITION PROPOSAL OTHER THAN THAT
CONTEMPLATED BY THIS AGREEMENT OR SHALL HAVE DETERMINED TO ACCEPT A SUPERIOR
PROPOSAL, (III) A TENDER OFFER OR EXCHANGE OFFER THAT, IF SUCCESSFUL, WOULD
RESULT IN ANY PERSON OR GROUP BECOMING A BENEFICIAL OWNER OF 20% OR MORE OF THE
OUTSTANDING SHARES OF ANY CLASS OR SERIES (OR THE VOTING POWER OF ANY CLASS OR
SERIES) OF EQUITY SECURITIES OF THE COMPANY, IS COMMENCED (OTHER THAN BY AN
INVESTOR OR AN AFFILIATE OF AN INVESTOR) AND THE BOARD FAILS WITHIN TEN DAYS
AFTER SUCH COMMENCEMENT TO RECOMMEND THAT THE STOCKHOLDERS OF THE COMPANY NOT
TENDER THEIR SHARES IN SUCH TENDER OR EXCHANGE OFFER OR (IV) FOR ANY REASON THE
COMPANY FAILS TO CALL OR HOLD THE STOCKHOLDERS' MEETING BY AUGUST 26, 2005;
42
(E)
BY THE COMPANY, IF THE BOARD DETERMINES TO
ACCEPT A SUPERIOR PROPOSAL, BUT ONLY AFTER THE COMPANY, (I) HOLDS THE
STOCKHOLDERS' MEETING AND HAS FAILED TO OBTAIN THE STOCKHOLDER APPROVAL REQUIRED
FOR THE CONSUMMATION OF THE TRANSACTIONS, (II) PROVIDES THE INVESTORS WITH NOT
LESS THAN THREE BUSINESS DAYS ADVANCE WRITTEN NOTICE OF ITS DETERMINATION TO
ACCEPT SUCH SUPERIOR PROPOSAL (INCLUDING ALL MATERIAL TERMS THEREOF) AND WITHIN
SUCH THREE BUSINESS DAY PERIOD HAS IN GOOD FAITH NEGOTIATED, AND HAS CAUSED ITS,
DIRECTORS, OFFICERS, FINANCIAL AND LEGAL ADVISORS TO NEGOTIATE WITH THE
INVESTORS TO MAKE SUCH ADJUSTMENTS TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
SUCH THAT SUCH ACQUISITION PROPOSAL WOULD NO LONGER CONSTITUTE A SUPERIOR
PROPOSAL, AND (II) FULFILLS ITS OBLIGATIONS UNDER SECTION 8.03 HEREOF
IMMEDIATELY PRIOR TO (AND AS A PRE-CONDITION TO) SUCH TERMINATION, PROVIDED,
HOWEVER THAT THE COMPANY'S RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS
SECTION 8.01(E) SHALL NOT BE AVAILABLE IF THE COMPANY IS THEN IN BREACH OF
SECTION 6.04, UNTIL SUCH TIME AS SUCH BREACH SHALL HAVE BEEN CURED;
(F)
BY THE INVESTORS, IF SINCE THE DATE OF
THIS AGREEMENT, THERE SHALL HAVE BEEN ANY EVENT, DEVELOPMENT OR CHANGE OF
CIRCUMSTANCE THAT CONSTITUTES, HAS HAD OR WOULD REASONABLY BE EXPECTED TO HAVE,
INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT AND SUCH MATERIAL
ADVERSE EFFECT IS NOT CURED WITHIN 20 DAYS AFTER THE COMPANY RECEIVES WRITTEN
NOTICE THEREOF FROM THE INVESTORS; OR
(G)
BY THE INVESTORS, IF (I) THE COMPANY SHALL
HAVE BREACHED ANY REPRESENTATION, COVENANT OR AGREEMENT SET FORTH IN THIS
AGREEMENT, (II) SUCH BREACH OR MISREPRESENTATION IS NOT CURED WITHIN 20 DAYS
AFTER THE COMPANY RECEIVES WRITTEN NOTICE THEREOF FROM THE INVESTORS AND
(III) SUCH BREACH OR MISREPRESENTATION WOULD CAUSE THE CONDITIONS SET FORTH IN
SECTION 7.02(A) OR SECTION 7.02(B) NOT TO BE SATISFIED.
(H)
BY THE COMPANY, IF (I) ANY INVESTOR SHALL
HAVE BREACHED ANY REPRESENTATION, COVENANT OR AGREEMENT SET FORTH IN THIS
AGREEMENT,