delivered to the Company such Resigning Board Member's irrevocable
resignation from the Company Board (each, a "Board Resignation" and,
collectively, the "Board Resignations"), in each case, subject to, and effective
immediately following, the Closing (which resignations shall terminate and be of
no force and effect upon the termination of this Agreement in accordance with
Section 12 hereof).
The Company shall accept, effective immediately following
the Closing, and without the necessity of any further action by the Company or
any of the Resigning Board Members, each of the Board Resignations.
Neither the
Company nor the Company Board shall take any action, or permit any action to be
taken, to rescind or release any of the Board Resignations, or otherwise
release, or permit or consent to the release of, any Resigning Board Member from
such Resigning Board Member's irrevocable obligation thereunder.
k.
No Solicitation of Transactions.
(I)
SUBJECT TO CLAUSES (II), (IV) AND (VII) OF THIS SECTION 4(K),
FROM AND AFTER THE DATE OF THIS AGREEMENT UNTIL THE CLOSING OR, IF EARLIER, THE
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH SECTION 12, THE COMPANY SHALL
NOT, AND SHALL CAUSE THE SUBSIDIARIES AND EACH OF THE COMPANY REPRESENTATIVES
NOT TO, DIRECTLY OR INDIRECTLY: (A) INITIATE, SOLICIT OR KNOWINGLY ENCOURAGE
(INCLUDING BY WAY OF PROVIDING INFORMATION) THE SUBMISSION OF ANY INQUIRIES,
PROPOSALS OR OFFERS OR ANY OTHER EFFORTS OR ATTEMPTS THAT CONSTITUTE, OR MAY
REASONABLY BE EXPECTED TO LEAD TO, ANY COMPETING PROPOSAL OR ENGAGE IN ANY
DISCUSSIONS OR NEGOTIATIONS WITH RESPECT THERETO OR OTHERWISE COOPERATE WITH OR
ASSIST OR PARTICIPATE IN OR FACILITATE ANY SUCH INQUIRIES, PROPOSALS, OFFERS,
DISCUSSIONS OR NEGOTIATIONS, (B) APPROVE OR RECOMMEND, OR PUBLICLY PROPOSE TO
APPROVE OR RECOMMEND, ANY COMPETING PROPOSAL, (C) WITHDRAW, CHANGE, AMEND,
MODIFY OR QUALIFY, OR PROPOSE PUBLICLY TO WITHDRAW, CHANGE, AMEND, MODIFY OR
QUALIFY, IN A MANNER ADVERSE TO ANY BUYER, THE COMPANY BOARD RECOMMENDATION
(D) ENTER INTO ANY MERGER AGREEMENT, LETTER OF INTENT, AGREEMENT IN PRINCIPLE,
SHARE PURCHASE AGREEMENT, ASSET PURCHASE AGREEMENT, SHARE EXCHANGE AGREEMENT,
OPTION AGREEMENT OR OTHER SIMILAR CONTRACT RELATING TO A COMPETING PROPOSAL OR
ENTER INTO ANY CONTRACT OR AGREEMENT IN PRINCIPLE REQUIRING THE COMPANY TO
ABANDON, TERMINATE OR BREACH ITS OBLIGATIONS HEREUNDER OR FAIL TO CONSUMMATE THE
TRANSACTIONS, OR (E) RESOLVE, PROPOSE OR AGREE TO DO ANY OF THE FOREGOING (ANY
ACTION OR FAILURE TO ACT SET FORTH IN THE FOREGOING CLAUSES (B), (C), (D) OR
(E), TO THE EXTENT RELATED TO THE FOREGOING CLAUSES (B) OR (C), IS REFERRED TO
HEREIN AS A "CHANGE OF BOARD RECOMMENDATION").
THE COMPANY SHALL IMMEDIATELY
CEASE AND CAUSE TO BE TERMINATED ANY SOLICITATION, KNOWING ENCOURAGEMENT,
DISCUSSION OR NEGOTIATION WITH ANY PERSONS CONDUCTED THERETOFORE BY THE COMPANY,
THE SUBSIDIARIES OR ANY OF THE COMPANY REPRESENTATIVES WITH RESPECT TO ANY
COMPETING PROPOSAL AND CAUSE TO BE RETURNED OR
32
DESTROYED ALL CONFIDENTIAL INFORMATION PROVIDED BY OR ON BEHALF OF THE COMPANY
OR ANY SUBSIDIARY TO SUCH PERSON.
(II)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
SECTION 4(K), IF AT ANY TIME FOLLOWING THE