THE TRANSACTIONS
DESCRIBED HEREIN AND CONTEMPLATED HEREBY, AND TO CARRY INTO EFFECT THE INTENTS
AND PURPOSES OF THIS AGREEMENT.
(B)
EXCLUSIVITY AND SUPERIOR OFFER.
(I)
EXCLUSIVITY.
FROM THE DATE HEREOF UNTIL THE CLOSING, AND UNLESS
THIS AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 6.14, THE COMPANY, ITS
SUBSIDIARIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND REPRESENTATIVES SHALL
NOT, DIRECTLY OR INDIRECTLY, ENTER INTO, OR COMMENCE, ANY DISCUSSIONS WITH ANY
THIRD PARTY FOR THE SALE AND ISSUE OF A MATERIAL NUMBER OF SHARES OF COMMON
STOCK OR A MATERIAL PORTION OF THE BUSINESS OF THE COMPANY.
NOTHING IN THIS
AGREEMENT SHALL PROHIBIT THE COMPANY FROM ISSUING A "STOP-LOOK-LISTEN"
COMMUNICATION PURSUANT TO RULE 14D-9(F) PROMULGATED UNDER THE UNITED STATES
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), OR TAKING AND
DISCLOSING TO ITS STOCKHOLDERS A POSITION AS REQUIRED BY RULE 14D-9 OR 14E-12
PROMULGATED UNDER THE EXCHANGE ACT.
(II)
SUPERIOR OFFERS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN SECTION 6.2(B)(I), IN THE EVENT THAT THE COMPANY RECEIVES AN
UNSOLICITED, BONA FIDE OFFER FOR THE ACQUISITION OF 100% OF THE EQUITY OR ASSETS
OF THE COMPANY (AN "ACQUISITION PROPOSAL") FROM A THIRD PARTY THAT THE BOARD HAS
IN GOOD FAITH CONCLUDED (FOLLOWING THE RECEIPT OF THE ADVICE OF
19
ITS OUTSIDE LEGAL COUNSEL AND ITS FINANCIAL ADVISOR) IS, OR IS REASONABLY LIKELY
TO RESULT IN, A SUPERIOR OFFER (AS DEFINED BELOW), THE COMPANY MAY THEN TAKE THE
FOLLOWING ACTIONS PROVIDED THAT THE BOARD CONCLUDES IN GOOD FAITH (AFTER
CONSULTATION WITH THEIR OUTSIDE LEGAL ADVISORS) THAT FAILURE TO DO SO COULD BE
INCONSISTENT WITH THEIR FIDUCIARY DUTIES UNDER APPLICABLE LAW:
(1)
FURNISH NONPUBLIC INFORMATION TO THE THIRD
PARTY MAKING SUCH ACQUISITION PROPOSAL, PROVIDED THAT (A) (1) CONCURRENTLY WITH
FURNISHING ANY SUCH NONPUBLIC INFORMATION TO SUCH PARTY, THE COMPANY GIVES THE
PURCHASER WRITTEN NOTICE OF ITS INTENTION TO FURNISH SUCH NONPUBLIC INFORMATION
AND (2) THE COMPANY RECEIVES FROM THE THIRD PARTY AN EXECUTED CONFIDENTIALITY
AGREEMENT CONTAINING CUSTOMARY LIMITATIONS ON THE USE AND DISCLOSURE OF ALL
NONPUBLIC WRITTEN AND ORAL INFORMATION FURNISHED TO SUCH THIRD PARTY ON THE
COMPANY'S BEHALF AND (B) CONTEMPORANEOUSLY WITH FURNISHING ANY SUCH NONPUBLIC
INFORMATION TO SUCH THIRD PARTY, THE COMPANY FURNISHES SUCH NONPUBLIC
INFORMATION TO THE PURCHASER (TO THE EXTENT SUCH NONPUBLIC INFORMATION HAS NOT
BEEN PREVIOUSLY SO FURNISHED).
(2)
ENGAGE IN NEGOTIATIONS WITH THE THIRD PARTY
WITH RESPECT TO THE ACQUISITION PROPOSAL, PROVIDED THAT CONCURRENTLY WITH
ENTERING INTO NEGOTIATIONS WITH SUCH THIRD PARTY, THE COMPANY GIVES THE
PURCHASER WRITTEN NOTICE OF THE COMPANY'S INTENTION TO ENTER INTO NEGOTIATIONS
WITH SUCH THIRD PARTY AND DURING SUCH NEGOTIATIONS PROVIDES PURCHASER WITH
COPIES OF ALL WRITTEN PROPOSALS DELIVERED BY SUCH THIRD PARTY, KEEPS PURCHASER
UPDATED REGARDING NEGOTIATIONS AND DISCUSSIONS IN A REASONABLY TIMELY MANNER AND
PROVIDES THE PURCHASER THE OPPORTUNITY TO FULLY PARTICIPATE AS AN OBSERVER IN
ALL SUCH NEGOTIATIONS AND DISCUSSIONS.
(3)
IN THE CASE OF A SUPERIOR OFFER THAT IS A
TENDER OR EXCHANGE OFFER MADE DIRECTLY TO THE STOCKHOLDERS OF THE COMPANY, MAY
RECOMMEND THAT THE STOCKHOLDERS OF