No Solicitation (from 8-K) -- relates to the solicitation of bids from other companies:
SECTION 5.5 NO SOLICITATION. From the date hereof until the Effective
Time or, if earlier, the termination of this Agreement, the Company and its
Subsidiaries shall not (whether directly or indirectly through advisors, agents
or other intermediaries), and the Company shall cause their respective officers,
directors, advisors (including its financial advisors, attorneys and
accountants), representatives or other agents not to, directly or indirectly,
(a) solicit, initiate or encourage any Acquisition Proposal (as defined
hereafter) or (b) engage in discussions or negotiations with, or disclose any
non-public information relating to the Company or its Subsidiaries or afford
access to the properties, books or records of the Company or its Subsidiaries
to, any Person or group (other than Parent or any designees of Parent)
concerning any Acquisition Proposal PROVIDED, HOWEVER, that if the Board of
Directors of the Company determines in good faith, based on such matters as it
deems relevant, acting only after consultation with WSGR (or other legal counsel
of nationally recognized standing) that the failure to do so would be a breach
of its fiduciary duties to the Company's stockholders under the DGCL, the
Company may, in response to an Acquisition Proposal that was not solicited and
that the Board of Directors of the Company determines, based upon the advice of
CSFB (or another financial advisor of nationally recognized standing), is from a
Person or group other than the Parent or its affiliates that is capable of
consummating a Superior Proposal and only for so long as the Board of Directors
so determines that its actions are likely to lead to a Superior Proposal, (i)
furnish information to any such Person or group only pursuant to a
confidentiality agreement substantially in the same form as was executed by
Parent prior to the execution of this Agreement and only if copies of such
information are concurrently provided to Parent, and (ii) participate in
discussions and negotiations regarding such proposal or offer. The Company shall
promptly (and in any event within one business day after becoming aware thereof)
(i) notify Parent in the event the Company or any of its Subsidiaries or other
affiliates or any of their respective officers, directors, employees and agents
receives any Acquisition Proposal, including the material terms and conditions
thereof and the identity of the party submitting such proposal, and any request
for confidential information in connection with a potential Acquisition
Proposal, (ii) provide a copy of any written agreements, proposals or other
materials the Company receives from any such Person or group (or its
representatives), (iii) provide Parent with copies of all information furnished
to any such Person or group pursuant to clause (i) of the preceding sentence if
such information has not been previously furnished to Parent and (iv) notify
Parent of any material changes or developments with respect to any of the
matters described in clauses (i) or (ii). For purposes of this Agreement,
"ACQUISITION PROPOSAL" with respect to a Person means any offer or proposal for
a merger, consolidation, recapitalization, liquidation or other business
combination involving such Person or the acquisition or purchase of over 50% or
more of any class of equity securities of such Person, or any tender offer
(including self-tenders) or exchange offer that if consummated would result in
any Person beneficially owning 50% or more of any class of equity securities of
such Person, or a substantial portion of the assets of, such Person and its
Subsidiaries taken as a whole (it being understood by the parties that the
assets of the Company not constituting the Semiconductor Business are a
substantial portion of the assets of the Company and its Subsidiaries, taken as
a whole), other than the transactions contemplated by this Agreement (including
the Semi Disposition). As used herein, a "SUPERIOR PROPOSAL" shall
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mean a bona fide Acquisition Proposal which in the reasonable good faith
judgment of the Company's Board of Directors, based on such matters as it deems
relevant, including in the case of clauses (i) and (ii) below the advice of the
Company's financial advisor, (i) provides greater benefits to the Company's
stockholders than those provided pursuant to this Agreement, (ii) provides that
any financing required to consummate the transaction contemplated by the offer
is either in the possession of the Person making such Acquisition Proposal or is
likely to be obtained by such Person on a timely basis, and (iii) does not
contain a "right of first refusal" or "right of first offer" with respect to any
counter-proposal that Parent might make; PROVIDED, FURTHER, that the Board of
Directors of the Company by a majority vote determines in its good faith
judgment that such Acquisition Proposal is reasonably capable of being completed
(taking into account all legal, financial, regulatory and other aspects of the
proposal and the person making the proposal). Nothing contained in this Section
5.5 shall prohibit the Company or the Company's Board of Directors from taking
and disclosing to the Company's stockholders a position with respect to a tender
or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a)
promulgated under the Exchange Act or from making any disclosure required by
applicable law.
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