IN PURSUING AN
ACQUISITION PROPOSAL (AS HEREINAFTER DEFINED) WITH THE COMPANY; PROVIDED THAT,
THIS SECTION 5.6(A) SHALL NOT PROHIBIT ACTIVITIES PERMITTED BY SECTION 5.6(B) IN
RESPONSE TO AN INQUIRY INITIATED AFTER THE DATE HEREOF.
(B)
PRIOR TO TERMINATION OF THIS AGREEMENT
PURSUANT TO ARTICLE VII HEREOF, THE COMPANY AND ITS SUBSIDIARIES SHALL NOT, NOR
SHALL THE COMPANY AUTHORIZE OR PERMIT ANY OFFICERS, DIRECTORS OR EMPLOYEES OF,
OR ANY INVESTMENT BANKERS, ATTORNEYS OR OTHER AGENTS OR REPRESENTATIVES RETAINED
BY OR ACTING ON BEHALF OF, THE COMPANY OR ANY OF ITS SUBSIDIARIES TO,
(I) INITIATE, SOLICIT OR ENCOURAGE, DIRECTLY OR INDIRECTLY, ANY INQUIRIES OR THE
MAKING OF ANY PROPOSAL THAT CONSTITUTES AN ACQUISITION PROPOSAL, (II) ENGAGE OR
PARTICIPATE IN NEGOTIATIONS OR DISCUSSIONS WITH, OR FURNISH ANY INFORMATION OR
DATA TO, OR TAKE ANY OTHER ACTION TO, FACILITATE ANY INQUIRIES OR MAKING ANY
PROPOSAL BY, ANY THIRD PARTY RELATING TO AN ACQUISITION PROPOSAL, (III) ENTER
INTO ANY AGREEMENT WITH RESPECT TO ANY ACQUISITION PROPOSAL OR APPROVE AN
ACQUISITION PROPOSAL, OR (IV) MAKE OR AUTHORIZE ANY STATEMENT, RECOMMENDATION OR
SOLICITATION IN SUPPORT OF ANY POSSIBLE ACQUISITION PROPOSAL.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 5.6 OR IN ANY OTHER PROVISION
OF THIS AGREEMENT, PRIOR TO THE COMPANY STOCKHOLDERS MEETING, THE COMPANY BOARD
MAY PARTICIPATE IN DISCUSSIONS OR NEGOTIATIONS WITH OR FURNISH INFORMATION TO
ANY THIRD PARTY MAKING AN UNSOLICITED ACQUISITION PROPOSAL (A "POTENTIAL
ACQUIROR") OR APPROVE OR RECOMMEND AN UNSOLICITED ACQUISITION PROPOSAL IF (A) A
MAJORITY OF THE DISINTERESTED DIRECTORS OF THE COMPANY BOARD DETERMINES IN GOOD
FAITH, AFTER CONSULTATION WITH ITS INDEPENDENT FINANCIAL ADVISOR, THAT A
POTENTIAL ACQUIROR HAS SUBMITTED TO THE COMPANY A WRITTEN ACQUISITION PROPOSAL
WHICH SETS FORTH A PRICE OR RANGE OF VALUES TO BE PAID BY THE POTENTIAL ACQUIROR
AND WHICH, IF CONSUMMATED, WOULD BE MORE FAVORABLE TO THE COMPANY'S
STOCKHOLDERS, FROM A FINANCIAL POINT OF VIEW, THAN THE MERGER (A "SUPERIOR
PROPOSAL"), (B) THE COMPANY BOARD HAS DETERMINED IN GOOD FAITH, BASED ON
CONSULTATION WITH INDEPENDENT FINANCIAL ADVISOR(S), THAT SUCH POTENTIAL ACQUIROR
IS FINANCIALLY CAPABLE OF CONSUMMATING SUCH SUPERIOR PROPOSAL, AND (C) A
MAJORITY OF THE DISINTERESTED DIRECTORS OF THE COMPANY BOARD DETERMINES IN GOOD
FAITH, AFTER RECEIVING ADVICE FROM REPUTABLE OUTSIDE LEGAL COUNSEL EXPERIENCED
IN SUCH MATTERS (AND THE PARTIES HERETO AGREE THAT THE LAW FIRM OF DAVIS
WRIGHT & TREMAINE LLP IS SO EXPERIENCED), THAT THE FAILURE TO PARTICIPATE IN
SUCH DISCUSSIONS OR NEGOTIATIONS OR TO FURNISH SUCH INFORMATION OR TO APPROVE OR
RECOMMEND SUCH UNSOLICITED ACQUISITION PROPOSAL IS INCONSISTENT WITH THE COMPANY
BOARD'S FIDUCIARY DUTIES UNDER APPLICABLE LAW.
IN THE EVENT THAT THE COMPANY
SHALL RECEIVE ANY ACQUISITION PROPOSAL, IT SHALL PROMPTLY (AND IN NO EVENT LATER
THAN FORTY-EIGHT (48) HOURS AFTER RECEIPT THEREOF) FURNISH TO PARENT THE
IDENTITY OF THE RECIPIENT OF THE ACQUISITION PROPOSAL AND OF THE POTENTIAL
ACQUIROR, THE TERMS OF SUCH ACQUISITION PROPOSAL, COPIES OF SUCH ACQUISITION
PROPOSAL AND ALL INFORMATION REQUESTED BY THE POTENTIAL ACQUIROR, AND SHALL
FURTHER PROMPTLY INFORM PARENT IN WRITING AS TO THE FACT SUCH