AND/OR WHICH IS REASONABLY REQUESTED BY THE COMPANY.
THE COMPANY SHALL NOTIFY
THE ESOP OF THE RECEIPT OF COMMENTS OF THE SEC AND OF ANY REQUEST FROM THE SEC
FOR AMENDMENTS OR SUPPLEMENTS TO THE PROXY STATEMENT OR THE SCHEDULE 13E-3 OR
FOR ADDITIONAL INFORMATION, AND WILL PROMPTLY SUPPLY THE ESOP WITH COPIES OF ALL
CORRESPONDENCE BETWEEN THE COMPANY OR ITS REPRESENTATIVES, ON THE ONE HAND, AND
THE SEC OR MEMBERS OF ITS STAFF, ON THE OTHER HAND, WITH RESPECT TO THE PROXY
STATEMENT, THE SCHEDULE 13E-3 OR THE MERGER.
EACH OF THE COMPANY, THE ESOP AND
MERGER SUB SHALL USE ITS RESPECTIVE REASONABLE BEST EFFORTS TO RESOLVE ALL SEC
COMMENTS WITH RESPECT TO THE PROXY STATEMENT, THE SCHEDULE 13E-3 AND ANY OTHER
REQUIRED FILINGS AS PROMPTLY AS PRACTICABLE AFTER RECEIPT THEREOF.
EACH OF THE
COMPANY, THE ESOP AND MERGER SUB AGREE TO CORRECT ANY INFORMATION PROVIDED BY IT
FOR USE IN THE PROXY STATEMENT OR THE SCHEDULE 13E-3 WHICH SHALL HAVE BECOME
FALSE OR MISLEADING.
IF AT ANY TIME PRIOR TO THE COMPANY MEETING ANY EVENT
SHOULD OCCUR WHICH IS REQUIRED BY APPLICABLE LAW TO BE SET FORTH IN AN AMENDMENT
OF, OR A SUPPLEMENT TO, THE PROXY STATEMENT OR THE SCHEDULE 13E-3, THE COMPANY
WILL PROMPTLY INFORM THE ESOP.
IN SUCH CASE, THE COMPANY, WITH THE COOPERATION
OF THE ESOP, WILL, UPON LEARNING OF SUCH EVENT, PROMPTLY PREPARE AND FILE SUCH
AMENDMENT OR SUPPLEMENT WITH THE SEC TO THE EXTENT REQUIRED BY APPLICABLE LAW
AND SHALL MAIL SUCH AMENDMENT OR SUPPLEMENT TO THE COMPANY'S SHAREHOLDERS TO THE
EXTENT REQUIRED BY APPLICABLE LAW; PROVIDED, HOWEVER, THAT PRIOR TO SUCH FILING,
THE COMPANY SHALL CONSULT WITH THE ESOP WITH RESPECT TO SUCH AMENDMENT OR
SUPPLEMENT AND SHALL AFFORD THE ESOP AND ITS REPRESENTATIVES REASONABLE
OPPORTUNITY TO COMMENT THEREON.
NOTWITHSTANDING THE FOREGOING, THE COMPANY
SHALL HAVE NO OBLIGATION TO NOTIFY THE ESOP OF ANY MATTERS TO THE EXTENT THAT
THE SPECIAL COMMITTEE OR THE BOARD OF DIRECTORS OF THE COMPANY DETERMINES IN
GOOD FAITH, AFTER CONSULTATION WITH THE COMPANY'S OR THE
35
SPECIAL COMMITTEE'S LEGAL COUNSEL, THAT TO DO SO WOULD BE INCONSISTENT WITH THE
DIRECTORS' EXERCISE OF THEIR FIDUCIARY OBLIGATIONS TO THE COMPANY'S SHAREHOLDERS
UNDER APPLICABLE LAW.
(B)
SUBJECT TO THE OTHER PROVISIONS OF THIS AGREEMENT, THE COMPANY
SHALL (I) TAKE ALL ACTION NECESSARY IN ACCORDANCE WITH THE DGCL AND ITS AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION AND BY-LAWS TO DULY CALL, GIVE NOTICE
OF, CONVENE AND HOLD A MEETING OF ITS SHAREHOLDERS AS PROMPTLY AS REASONABLY
PRACTICABLE FOLLOWING THE MAILING OF THE PROXY STATEMENT FOR THE PURPOSE OF
OBTAINING THE COMPANY SHAREHOLDER APPROVAL (THE "COMPANY MEETING") (INCLUDING
MAILING THE PROXY STATEMENT AS SOON AS REASONABLY PRACTICABLE AFTER THE SEC HAS
CLEARED THE PROXY STATEMENT AND HOLDING THE COMPANY MEETING NO LATER THAN 45
DAYS AFTER MAILING THE PROXY STATEMENT, UNLESS A LATER DATE IS MUTUALLY AGREED
BY THE COMPANY AND THE ESOP), AND (II) SUBJECT TO ANY CHANGE OF RECOMMENDATION
OF THE BOARD OF DIRECTORS OR THE SPECIAL