IN THIS
AGREEMENT SHALL PREVENT SELLER OR ITS BOARD OF DIRECTORS, FROM:
21
(A)
FURNISHING NON-PUBLIC INFORMATION TO, OR ENTERING INTO DISCUSSIONS
OR NEGOTIATIONS WITH, ANY PERSON OR ENTITY IN CONNECTION WITH A BONA FIDE
WRITTEN ACQUISITION PROPOSAL BY SUCH PERSON OR ENTITY OR AGREEING TO (WITH THE
TERMS OF ANY SUCH AGREEMENT BEING SUBJECT TO TERMINATION OF THIS AGREEMENT IN
ACCORDANCE WITH ARTICLE VII) OR RECOMMENDING A BONA FIDE WRITTEN ACQUISITION
PROPOSAL TO THE STOCKHOLDERS OF SELLER, IF AND ONLY TO THE EXTENT THAT:
1)
THE BOARD OF DIRECTORS OF SELLER BELIEVES IN GOOD FAITH (AFTER
CONSULTATION WITH ITS FINANCIAL ADVISOR) THAT SUCH ACQUISITION PROPOSAL IS
REASONABLY CAPABLE OF BEING COMPLETED ON THE TERMS PROPOSED AND WOULD, IF
CONSUMMATED, RESULT IN A TRANSACTION MORE FAVORABLE TO SELLER OR ITS
STOCKHOLDERS THAN THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT (ANY SUCH MORE
FAVORABLE ACQUISITION PROPOSAL BEING REFERRED TO IN THIS AGREEMENT AS A
"SUPERIOR PROPOSAL") AND SELLER'S BOARD OF DIRECTORS DETERMINES IN GOOD FAITH
AFTER CONSULTATION WITH OUTSIDE LEGAL COUNSEL THAT SUCH ACTION IS NECESSARY FOR
SUCH BOARD OF DIRECTORS TO COMPLY WITH ITS FIDUCIARY DUTIES TO STOCKHOLDERS
UNDER APPLICABLE LAW;
2)
PRIOR TO FURNISHING SUCH NON-PUBLIC INFORMATION TO, OR ENTERING
INTO DISCUSSIONS OR NEGOTIATIONS WITH, SUCH PERSON OR ENTITY, SUCH BOARD OF
DIRECTORS RECEIVES FROM SUCH PERSON OR ENTITY AN EXECUTED CONFIDENTIALITY
AGREEMENT WITH TERMS NOT MATERIALLY MORE FAVORABLE TO SUCH PARTY THAN THOSE
CONTAINED IN THE CONFIDENTIALITY AGREEMENT; AND
3)
PRIOR TO RECOMMENDING A SUPERIOR PROPOSAL, SELLER SHALL PROVIDE
BUYER WITH AT LEAST FIVE BUSINESS DAYS' PRIOR NOTICE OF ITS PROPOSAL TO DO SO,
DURING WHICH TIME BUYER MAY MAKE, AND IN SUCH EVENT SELLER SHALL CONSIDER, A
COUNTERPROPOSAL TO SUCH SUPERIOR PROPOSAL, AND, SUBJECT TO THE FIDUCIARY DUTIES
OF SELLER'S BOARD OF DIRECTORS, SELLER SHALL ITSELF AND SHALL CAUSE ITS
FINANCIAL AND LEGAL ADVISORS TO NEGOTIATE ON ITS BEHALF WITH BUYER WITH RESPECT
TO THE TERMS AND
22
CONDITIONS OF SUCH COUNTERPROPOSAL FOR A REASONABLE PERIOD OF TIME (NOT TO
EXCEED 10 BUSINESS DAYS AFTER THE SELLER'S RECEIPT OF BUYER'S COUNTERPROPOSAL)
GIVEN THE TERMS AND CONDITIONS OF SUCH COUNTERPROPOSAL AND SUCH SUPERIOR
PROPOSAL; OR
(B)
COMPLYING WITH RULE 14D-9 AND 14E-2 PROMULGATED UNDER THE EXCHANGE
ACT WITH REGARD TO AN ACQUISITION PROPOSAL.
(B) SELLER WILL IMMEDIATELY CEASE ANY AND ALL EXISTING ACTIVITIES, DISCUSSIONS
OR NEGOTIATIONS WITH ANY PARTIES CONDUCTED HERETOFORE OF THE NATURE DESCRIBED IN
SECTION 5.1(A) AND WILL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN THE RETURN
OR DESTRUCTION OF ANY CONFIDENTIAL INFORMATION FURNISHED TO ANY SUCH PARTIES.
(C) SELLER SHALL NOTIFY BUYER PROMPTLY, BUT IN ANY EVENT NO MORE THAN 24 HOURS,
AFTER RECEIPT BY SELLER (OR ITS ADVISORS) OF ANY ACQUISITION PROPOSAL OR ANY
REQUEST FOR NON-PUBLIC INFORMATION IN CONNECTION WITH AN ACQUISITION PROPOSAL OR
FOR ACCESS TO THE PROPERTIES, BOOKS OR RECORDS OF SELLER BY ANY PERSON OR ENTITY
THAT INFORMS SELLER THAT IT IS CONSIDERING MAKING, OR HAS MADE, AN ACQUISITION
PROPOSAL.
SUCH NOTICE SHALL BE MADE IN WRITING AND SHALL INDICATE