Common use of Fiduciary Out Clause in Contracts

Fiduciary Out. (a) Except as set forth in this Section 6.02(a), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company or a committee thereof determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's shareholders, the Board of Directors or such committee may withdraw or modify its approval or recommendation of this Agreement, approve or recommend a Takeover Proposal or cause the Company to enter into an agreement with respect to a Takeover Proposal. In evaluating any unsolicited Takeover Proposal, the Company's Board of Directors or any committee thereof may consider any statement or indication from or on behalf of Parent that it will not agree to such Takeover Proposal, provided that such fact shall not prevent the Company's Board of Directors from taking any action permitted pursuant to this Section 6.02(a). For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person (other than Parent or any of its Affiliates) relating to any direct or indirect acquisition or purchase of a substantial amount of assets of the Company or any of its Subsidiaries or of 50% or more of the shares of Company Common Stock, any tender offer or exchange offer that if consummated would result in any person beneficially owning 50% or more of the shares of Company Common Stock, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Merger, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would reasonably be expected to dilute materially the benefits to Parent of the transaction contemplated hereby.

Fiduciary Out. (a) Except as set forth in this Section 6.02(a), neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company or a committee thereof determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's ’s shareholders, the Board of Directors or such committee may withdraw or modify its approval or recommendation of this Agreement, approve or recommend a Takeover Proposal or cause the Company to enter into an agreement with respect to a Takeover Proposal. In evaluating any unsolicited Takeover Proposal, the Company's ’s Board of Directors or any committee thereof may consider any statement or indication from or on behalf of Parent that it will not agree to such Takeover Proposal, provided that such fact shall not prevent the Company's ’s Board of Directors from taking any action permitted pursuant to this Section 6.02(a). For purposes of this Agreement, "“Takeover Proposal" ” means any inquiry, proposal or offer from any person (other than Parent or any of its Affiliates) relating to any direct or indirect acquisition or purchase of a substantial amount of assets of the Company or any of its Subsidiaries or of 50% or more of the shares of Company Common Stock, any tender offer or exchange offer that if consummated would result in any person beneficially owning 50% or more of the shares of Company Common Stock, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Merger, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would reasonably be expected to dilute materially the benefits to Parent of the transaction contemplated hereby.

Fiduciary Out. (a) Except as set forth Nothing in this Section 6.02(aAgreement shall prohibit the Company (either directly or indirectly through advisors, agents or intermediaries) from (i) furnishing information pursuant to an appropriate confidentiality letter concerning the Company and its businesses, properties or assets to a third party who has made a bona fide Alternative Transaction Proposal, (ii) engaging in discussions or negotiations with any such third party who has made a bona fide Alternative Transaction Proposal, (iii) following receipt of a bona fide Alternative Transaction Proposal, taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Securities Exchange Act of 1934, as amended, or otherwise making a disclosure to stockholders, and/or (iv) following receipt of a bona fide Alternative Transaction Proposal, failing to make or withdrawing or modifying its recommendation that the stockholders of the Company approve the Merger, in each case referred to in the foregoing clauses (i)-(iv), neither to the extent the Board of Directors of the Company nor any committee thereof shall (i) withdraw have concluded that such action or modify, or propose actions are required to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company or a committee thereof determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with satisfy its fiduciary duties to the Company's shareholders, Company and its stockholders under applicable Delaware Law. For the Board of Directors or such committee may withdraw or modify its approval or recommendation purpose of this Agreement, approve or recommend a Takeover Proposal or cause the Company to enter into an agreement with respect to a Takeover “Alternative Transaction Proposal. In evaluating any unsolicited Takeover Proposal, the Company's Board of Directors or any committee thereof may consider any statement or indication from or on behalf of Parent that it will not agree to such Takeover Proposal, provided that such fact shall not prevent the Company's Board of Directors from taking any action permitted pursuant to this Section 6.02(a). For purposes of this Agreement, "Takeover Proposal" ” means any inquiry, offer or proposal for any transaction or offer from any person (series of related transactions other than Parent the transactions contemplated by this Agreement involving: (i) (A) any merger, arrangement, consolidation, share exchange, business combination, recapitalization, tender offer, exchange offer or other similar transaction involving any of its Affiliates) relating to any direct or indirect acquisition or purchase of a substantial amount of assets of the Company or its Subsidiaries, (B) any transaction in which a person or group of persons directly or indirectly acquires beneficial ownership of securities representing more than 20% of the outstanding voting securities of any of the Company or its Subsidiaries, or (C) any transaction in which any of the Company or its Subsidiaries issues securities representing more than 20% of the outstanding voting securities of any of the Company or its Subsidiaries; (ii) any sale, lease, exchange, transfer, license, or disposition of 50any business or businesses or assets that constitute or account for 10% or more of the shares consolidated net revenues, net income or assets of any of the Company Common Stockor its Subsidiaries; or (iii) any liquidation or dissolution of any of the Company or its Subsidiaries. Notwithstanding anything to the contrary in this Agreement (i) the Company shall not, any tender offer or exchange offer that if consummated would result in and shall not authorize any person beneficially owning 50% or more entity acting on its behalf, to solicit an Alternative Transaction Proposal, (ii) if the Company receives an Alternative Transaction Proposal, the Company shall promptly notify the Parent in writing of that fact and furnish the shares Parent copies of all written documents including or incidental to the Alternative Transaction Proposal subject to any confidentiality restrictions in such proposal, (iii) the Company Common Stockshall afford the Parent not fewer than five (5) business days to respond to the Alternative Transaction Proposal, any mergerand (iv) if the Company terminates this Agreement pursuant to Section 8.1(e), consolidationthe Company shall immediately pay the Parent $250,000 and notwithstanding anything to the contrary contained herein, business combinationsuch amount shall be the Parent’s sole and exclusive remedy. The parties further agree that the forgoing payment shall be as liquidated damages and not as a penalty, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Merger, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would reasonably be expected to dilute materially the benefits that actual damages resulting to Parent from Company’s termination of this Agreement would be difficult or impossible to measure, and that the transaction contemplated herebyforgoing payment is a reasonable estimate of what those damages would be.

Fiduciary Out. (a) Except as set forth Nothing in this Section 6.02(aAgreement shall prohibit the Company (either directly or indirectly through advisors, agents or intermediaries) from (i) furnishing information pursuant to an appropriate confidentiality letter concerning the Company and its businesses, properties or assets to a third party who has made a bona fide Alternative Transaction Proposal, (ii) engaging in discussions or negotiations with any such third party who has made a bona fide Alternative Transaction Proposal, (iii) following receipt of a bona fide Alternative Transaction Proposal, taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Securities Exchange Act of 1934, as amended, or otherwise making a disclosure to stockholders, and/or (iv) following receipt of a bona fide Alternative Transaction Proposal, failing to make or withdrawing or modifying its recommendation that the stockholders of the Company approve the Merger, in each case referred to in the foregoing clauses (i)-(iv), neither to the extent the Board of Directors of the Company nor any committee thereof shall (i) withdraw have concluded that such action or modify, or propose actions are required to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or committee of this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any agreement with respect to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior to the Effective Time the Board of Directors of the Company or a committee thereof determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with satisfy its fiduciary duties to the Company's shareholders, Company and its stockholders under applicable Delaware Law. For the Board of Directors or such committee may withdraw or modify its approval or recommendation purpose of this Agreement, approve or recommend a Takeover Proposal or cause the Company to enter into an agreement with respect to a Takeover “Alternative Transaction Proposal. In evaluating any unsolicited Takeover Proposal, the Company's Board of Directors or any committee thereof may consider any statement or indication from or on behalf of Parent that it will not agree to such Takeover Proposal, provided that such fact shall not prevent the Company's Board of Directors from taking any action permitted pursuant to this Section 6.02(a). For purposes of this Agreement, "Takeover Proposal" ” means any inquiry, offer or proposal for any transaction or offer from any person (series of related transactions other than Parent the transactions contemplated by this Agreement involving: (i) (A) any merger, arrangement, consolidation, share exchange, business combination, recapitalization, tender offer, exchange offer or other similar transaction involving any of its Affiliates) relating to any direct or indirect acquisition or purchase of a substantial amount of assets of the Company or its Subsidiaries, (B) any transaction in which a person or group of persons directly or indirectly acquires beneficial ownership of securities representing more than 20% of the outstanding voting securities of any of the Company or its Subsidiaries, or (C) any transaction in which any of the Company or its Subsidiaries issues securities representing more than 20% of the outstanding voting securities of any of the Company or its Subsidiaries; (ii) any sale, lease, exchange, transfer, license, or disposition of 50any business or businesses or assets that constitute or account for 10% or more of the shares consolidated net revenues, net income or assets of any of the Company Common Stockor its Subsidiaries; or (iii) any liquidation or dissolution of any of the Company or its Subsidiaries. Notwithstanding anything to the contrary in this Agreement (i) the Company shall not, any tender offer or exchange offer that if consummated would result in and shall not authorize any person beneficially owning 50% or more entity acting on its behalf, to solicit an Alternative Transaction Proposal, (ii) if the Company receives an Alternative Transaction Proposal, the Company shall promptly notify the Parent in writing of that fact and furnish the shares Parent copies of all written documents including or incidental to the Alternative Transaction Proposal subject to any confidentiality restrictions in such proposal, (iii) the Company Common Stockshall afford the Parent not fewer than five (5) business days to respond to the Alternative Transaction Proposal, any mergerand (iv) if the Company terminates this Agreement pursuant to Section 8.1(e), consolidationthe Company shall immediately pay the Parent $250,000 and notwithstanding anything to the contrary contained herein, business combinationsuch amount shall be the Parent’s sole and exclusive remedy. The parties further agree that the forgoing payment shall be as liquidated damages and not as a penalty, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Merger, or any other transaction the consummation of which could reasonably be expected to impede, interfere with, prevent or materially delay the Merger or which would reasonably be expected to dilute materially the benefits that actual damages resulting to Parent from Company’s termination of this Agreement would be difficult or impossible to measure, and that the transaction contemplated hereby.forgoing payment is a reasonable estimate of what those damages would be. FINAL 08/28/08