IT WOULD
OTHERWISE CONSTITUTE A BREACH OF ITS FIDUCIARY DUTY TO STOCKHOLDERS TO NOT TAKE
AND DISCLOSE SUCH POSITION OR (Y) IN THE EVENT THAT A SUPERIOR PROPOSAL IS MADE
AND THE BOARD DETERMINES IN GOOD FAITH, AFTER CONSULTATION WITH OUTSIDE COUNSEL,
THAT IT WOULD OTHERWISE CONSTITUTE A BREACH OF ITS FIDUCIARY DUTY TO
STOCKHOLDERS, FROM WITHDRAWING OR MODIFYING ITS RECOMMENDATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT NO EARLIER THAN THREE BUSINESS DAYS
FOLLOWING THE DAY OF DELIVERY
34
OF WRITTEN NOTICE TO THE INVESTORS OF ITS INTENTION TO DO SO.
NOTWITHSTANDING
ANY ACTIONS THAT MAY BE TAKEN PURSUANT TO THIS SECTION 6.04, THE COMPANY SHALL
IN ALL EVENTS COMPLY WITH THE PROVISIONS OF SECTION 6.01.
SECTION 6.05.
Further Action; Reasonable Best Efforts; Consents; Filings.
(A)
UPON THE TERMS AND SUBJECT TO THE
CONDITIONS HEREOF, EACH OF THE PARTIES HERETO SHALL USE ITS REASONABLE BEST
EFFORTS TO (I) TAKE, OR CAUSE TO BE TAKEN, ALL APPROPRIATE ACTION, AND TO DO, OR
CAUSE TO BE DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE UNDER APPLICABLE
LAWS TO CONSUMMATE AND MAKE EFFECTIVE THE TRANSACTIONS, (II) OBTAIN FROM ANY
GOVERNMENTAL AUTHORITIES ANY CONSENTS, LICENSES, PERMITS, WAIVERS, APPROVALS,
AUTHORIZATIONS OR ORDERS REQUIRED TO BE OBTAINED OR MADE BY THE INVESTORS OR THE
COMPANY OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, OR TO AVOID ANY ACTION OR
PROCEEDING BY ANY GOVERNMENTAL AUTHORITY (INCLUDING, WITHOUT LIMITATION, THOSE
IN CONNECTION WITH THE HSR ACT), IN CONNECTION WITH THE AUTHORIZATION, EXECUTION
AND DELIVERY OF THIS AGREEMENT AND EACH ANCILLARY AGREEMENT AND THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN, INCLUDING, WITHOUT
LIMITATION, THE TRANSACTIONS, AND (III) MAKE PROMPTLY ITS RESPECTIVE FILINGS,
AND THEREAFTER MAKE ANY OTHER SUBMISSIONS, REQUIRED UNDER (X) THE EXCHANGE ACT,
AND ANY OTHER APPLICABLE FEDERAL OR STATE SECURITIES LAWS, (Y) THE HSR ACT (IN
RESPECT OF WHICH THE PARTIES WILL FILE A NOTIFICATION AND REPORT FORM AS SOON AS
PRACTICABLE BUT IN NO EVENT LATER THAN TEN (10) DAYS AFTER THE DATE OF THIS
AGREEMENT) AND (Z) ANY OTHER APPLICABLE LAW; PROVIDED, HOWEVER, THAT THE
INVESTORS AND THE COMPANY SHALL COOPERATE WITH EACH OTHER IN CONNECTION WITH THE
MAKING OF ALL SUCH FILINGS, INCLUDING PROVIDING COPIES OF ALL SUCH DOCUMENTS TO
THE NON-FILING PARTY AND ITS ADVISORS PRIOR TO FILING AND, IF REQUESTED, TO
ACCEPT ALL REASONABLE ADDITIONS, DELETIONS OR CHANGES SUGGESTED IN CONNECTION
THEREWITH.
(B)
THE PARTIES HERETO SHALL COOPERATE AND
ASSIST ONE ANOTHER IN CONNECTION WITH ALL ACTIONS TO BE TAKEN PURSUANT TO
SECTION 6.05(A), INCLUDING THE PREPARATION AND MAKING OF THE FILINGS REFERRED TO
THEREIN AND, IF REQUESTED, AMENDING OR FURNISHING ADDITIONAL INFORMATION
THEREUNDER, INCLUDING, SUBJECT TO APPLICABLE LAW AND THE CONFIDENTIALITY
AGREEMENT, PROVIDING COPIES OF ALL RELATED DOCUMENTS TO THE NON-FILING PARTY AND
THEIR ADVISORS PRIOR TO FILING, AND TO THE EXTENT PRACTICABLE NONE OF THE
PARTIES WILL FILE ANY SUCH DOCUMENT OR HAVE ANY COMMUNICATION WITH ANY
GOVERNMENTAL AUTHORITY WITHOUT PRIOR CONSULTATION WITH THE OTHER PARTIES.
EACH
PARTY SHALL KEEP THE OTHERS APPRISED OF THE CONTENT AND STATUS OF