PROVISIONS HEREOF OR THEREOF, NOR THE EXERCISE OF
THE OPTION, IN EACH CASE BY OPTIONEE, WILL:
(I)
CONFLICT WITH, RESULT IN A BREACH OF THE
TERMS, CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT, AN EVENT OF DEFAULT
OR AN EVENT CREATING RIGHTS OF ACCELERATION, TERMINATION OR CANCELLATION OR A
LOSS OF RIGHTS UNDER (A) THE CERTIFICATE OF INCORPORATION OR BY-LAWS OF
OPTIONEE, (B) ANY MATERIAL NOTE, INSTRUMENT, AGREEMENT, MORTGAGE, LEASE,
LICENSE, FRANCHISE, PERMIT OR OTHER AUTHORIZATION, RIGHT, RESTRICTION OR
OBLIGATION TO WHICH OPTIONEE IS A PARTY OR ANY OF ITS PROPERTIES OR ASSETS IS
SUBJECT OR BY WHICH OPTIONEE IS BOUND, (C) ANY COURT ORDER TO WHICH OPTIONEE IS
A PARTY OR ANY OF OPTIONEE'S PROPERTIES OR ASSETS IS SUBJECT OR BY WHICH IT IS
BOUND OR (D) ANY MATERIAL REQUIREMENTS OF LAWS AFFECTING OPTIONEE, ITS ASSETS OR
ITS BUSINESS; OR
(II)
REQUIRE THE APPROVAL, CONSENT,
AUTHORIZATION OR ACT OF, OR THE MAKING BY OPTIONEE OF ANY DECLARATION, FILING OR
REGISTRATION WITH, ANY PERSON, EXCEPT, WITH RESPECT TO THE CONSUMMATION OF THE
MERGER, AS PROVIDED UNDER THE HSR ACT.
4.3.
NO FINDER.
NEITHER OPTIONEE NOR ANY PERSON
ACTING ON ITS BEHALF HAS PAID OR BECOME OBLIGATED TO PAY ANY FEE OR COMMISSION
TO ANY BROKER, FINDER OR INTERMEDIARY FOR OR ON ACCOUNT OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
4.4.
FINANCIAL WHEREWITHAL.
OPTIONEE HAS THE
FINANCIAL WHEREWITHAL, IN THE FORM OF CASH ON HAND, TO FUND THE CREDIT AGREEMENT
AND TO PAY THE CLOSING DATE MERGER CONSIDERATION (AS DEFINED IN THE MERGER
AGREEMENT).
ARTICLE V
ACTION PRIOR TO THE OPTION TERMINATION DATE
The respective parties hereto covenant and agree to take the following actions
between the date hereof and the earlier of the Option Termination Date or, if
the Option is exercised prior to the Option Termination Date, the Merger
Agreement Execution Date:
5.1.
INVESTIGATION BY OPTIONEE; INFORMATION RIGHTS.
(A)
THE COMPANY SHALL AFFORD THE OFFICERS,
EMPLOYEES AND AUTHORIZED REPRESENTATIVES OF OPTIONEE (INCLUDING INDEPENDENT
PUBLIC ACCOUNTANTS AND ATTORNEYS) REASONABLE ACCESS, UPON THREE (3) BUSINESS
DAYS' NOTICE AND NOT MORE THAN THREE (3) TIMES PER CALENDAR QUARTER (PROVIDED,
THAT WITH RESPECT TO OPTIONEE'S AND/OR OPTIONEE'S AUDITORS' REQUEST FOR, AND
ACCESS TO, FINANCIAL RECORDS AND INFORMATION THAT ARE REQUIRED FOR OPTIONEE TO
PREPARE ITS FINANCIAL STATEMENTS OR FOR OPTIONEE'S AUDITORS TO REVIEW, AUDIT OR
PERFORM OTHER PROCEDURES ON OPTIONEE'S FINANCIAL STATEMENTS, OPTIONEE AND
OPTIONEES' AUDITORS SHALL ONLY BE REQUIRED TO PROVIDE REASONABLE ADVANCE NOTICE
AND SHALL NOT BE LIMITED IN THE NUMBER OF VISITS IT MAY MAKE), DURING NORMAL
BUSINESS HOURS TO THE OFFICES, PROPERTIES, EMPLOYEES AND BUSINESS AND FINANCIAL
RECORDS (INCLUDING COMPUTER FILES, RETRIEVAL PROGRAMS AND SIMILAR DOCUMENTATION)
OF THE COMPANY AND THE SUBSIDIARIES TO THE EXTENT OPTIONEE SHALL DEEM NECESSARY
OR DESIRABLE AND SHALL FURNISH TO OPTIONEE OR ITS AUTHORIZED REPRESENTATIVES
SUCH ADDITIONAL INFORMATION CONCERNING THE ASSETS, PROPERTIES, OPERATIONS AND
BUSINESSES OF THE COMPANY AND THE SUBSIDIARIES AS SHALL BE REASONABLY
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REQUESTED, INCLUDING ALL SUCH INFORMATION AS SHALL BE NECESSARY TO ENABLE
OPTIONEE OR ITS REPRESENTATIVES TO