SCHEDULE 14D-9 AS REQUIRED BY
RULE 14D-9 PROMULGATED UNDER THE EXCHANGE ACT. THE SCHEDULE 14D-9 WILL SET FORTH
THAT THE COMPANY'S BOARD OF DIRECTORS HAS (I) DETERMINED BY UNANIMOUS VOTE OF
ALL ITS MEMBERS THAT EACH OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING
EACH OF THE OFFER AND THE MERGER, IS FAIR TO AND IN THE BEST INTERESTS OF THE
COMPANY AND ITS STOCKHOLDERS, (II) APPROVED THE OFFER AND THE MERGER AND THIS
AGREEMENT IN ACCORDANCE WITH THE DELAWARE GENERAL CORPORATION LAW ("DGCL") AND
(III) RECOMMENDED ACCEPTANCE AND APPROVAL OF THE OFFER AND ADOPTION OF THIS
AGREEMENT BY THE COMPANY'S STOCKHOLDERS; PROVIDED, HOWEVER, THAT PARENT AND
MERGER SUB AGREE THAT SUCH RECOMMENDATIONS AND THE SCHEDULE 14D-9 MAY BE
MODIFIED IN A MANNER ADVERSE TO PARENT AND MERGER SUB OR WITHDRAWN AFTER THE
DATE HEREOF IF, BUT ONLY IF, AFTER CONSULTATION WITH ITS OUTSIDE COUNSEL, THE
BOARD OF DIRECTORS DETERMINES THAT SUCH ACTION IS ADVISABLE IN CONNECTION WITH
ITS FIDUCIARY DUTIES UNDER APPLICABLE LAW.
(B)
EACH OF THE COMPANY, ON THE ONE HAND, AND
PARENT AND MERGER SUB, ON THE OTHER HAND, AGREES TO CORRECT PROMPTLY ANY
INFORMATION PROVIDED BY IT FOR USE IN THE SCHEDULE 14D-9 IF AND TO THE EXTENT
THAT IT SHALL HAVE BECOME FALSE OR MISLEADING IN ANY MATERIAL RESPECT AND THE
COMPANY FURTHER AGREES TO TAKE ALL STEPS NECESSARY TO CAUSE THE SCHEDULE 14D-9
AS SO CORRECTED TO BE FILED WITH THE SEC AND TO BE DISSEMINATED TO STOCKHOLDERS
OF THE COMPANY, IN EACH CASE, AS AND TO THE EXTENT REQUIRED BY APPLICABLE
FEDERAL SECURITIES LAWS. THE COMPANY
3
SHALL PROVIDE TO PARENT AND ITS COUNSEL COPIES IN WRITING OF ANY COMMENTS AND
SHALL INFORM PARENT OF ANY ORAL COMMENTS THAT THE COMPANY OR ITS COUNSEL
MAY RECEIVE FROM THE SEC OR ITS STAFF WITH RESPECT TO THE SCHEDULE 14D-9
PROMPTLY AFTER RECEIPT OF SUCH COMMENTS. PARENT AND ITS COUNSEL SHALL BE GIVEN A
REASONABLE OPPORTUNITY TO REVIEW ANY SUCH WRITTEN AND ORAL COMMENTS AND PROPOSED
RESPONSES.
(C)
IN CONNECTION WITH THE OFFER, THE COMPANY
WILL PROMPTLY FURNISH MERGER SUB WITH MAILING LABELS, SECURITY POSITION
LISTINGS, ANY AVAILABLE NON-OBJECTING BENEFICIAL OWNER LISTS AND ANY AVAILABLE
LISTING OR COMPUTER LIST CONTAINING THE NAMES AND ADDRESSES OF THE RECORD
HOLDERS OF THE COMPANY COMMON STOCK AS OF THE MOST RECENT PRACTICABLE DATE AND
SHALL FURNISH MERGER SUB WITH SUCH ADDITIONAL AVAILABLE INFORMATION (INCLUDING,
BUT NOT LIMITED TO, UPDATED LISTS OF HOLDERS OF THE COMPANY COMMON STOCK AND
THEIR ADDRESSES, MAILING LABELS AND LISTS OF SECURITY POSITIONS AND
NON-OBJECTING BENEFICIAL OWNER LISTS) AND SUCH OTHER ASSISTANCE AS MERGER SUB OR
ITS AGENTS MAY REASONABLY REQUEST IN COMMUNICATING THE OFFER TO THE COMPANY'S
RECORD AND BENEFICIAL STOCKHOLDERS. SUBJECT TO THE REQUIREMENTS OF APPLICABLE
LAW, AND EXCEPT FOR SUCH STEPS AS ARE NECESSARY TO DISSEMINATE THE OFFER
DOCUMENTS AND ANY OTHER DOCUMENTS NECESSARY TO CONSUMMATE THE MERGER, PARENT,
MERGER SUB AND THEIR AFFILIATES, ASSOCIATES, AGENTS AND ADVISORS SHALL KEEP SUCH
INFORMATION CONFIDENTIAL AND USE THE INFORMATION CONTAINED IN ANY SUCH LABELS,