EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM
ITS OBLIGATIONS UNDER THIS AGREEMENT.
(B)
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY BUYER NOR
THE CONSUMMATION OR PERFORMANCE BY BUYER OF ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY WILL GIVE ANY PERSON THE RIGHT TO PREVENT, DELAY, OR OTHERWISE INTERFERE
WITH THE PERFORMANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY PURSUANT TO:
(I)
ANY PROVISION OF BUYER'S ORGANIZATIONAL DOCUMENTS;
(II)
ANY RESOLUTION ADOPTED BY THE BOARD OF DIRECTORS OR THE
STOCKHOLDERS OF BUYER;
(III)
ANY LEGAL REQUIREMENT OR ORDER TO WHICH BUYER MAY BE SUBJECT; OR
(IV)
ANY CONTRACT TO WHICH BUYER IS A PARTY OR BY WHICH BUYER MAY BE
BOUND.
(C)
EXCEPT AS SET FORTH IN SCHEDULE 4.2, BUYER IS NOT AND WILL NOT BE
REQUIRED TO OBTAIN ANY CONSENT FROM ANY PERSON IN CONNECTION WITH THE EXECUTION
AND DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION OR PERFORMANCE OF ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
45
4.3.
CERTAIN PROCEEDINGS.
There is no pending Proceeding that has been commenced against Buyer and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with, this Agreement or any of the transactions
contemplated hereby.
To Buyer's Knowledge, no such Proceeding has been
Threatened.
4.4.
BROKERS OR FINDERS.
Buyer and its officers and agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement and will indemnify
and hold Seller harmless from any such payment alleged to be due by or through
Buyer as a result of the action of Buyer or its officers or agents.
5.
COVENANTS OF SELLER AND GISH PRIOR TO
CLOSING DATE
5.1.
ACCESS AND INVESTIGATION.
Between the date of this Agreement and the Closing Date, Seller will, and will
cause Gish and its Representatives to, (a) afford Buyer and its Representatives
(collectively, "Buyer's Advisors") reasonable access to Gish's personnel,
properties, contracts, books and records, and other documents and data, (b)
furnish Buyer and its Representatives with copies of all such contracts, books
and records, and other existing documents and data as Buyer may reasonably
request, and (c) furnish Buyer and its Representatives with such additional
financial, operating, and other data and information as Buyer may reasonably
request.
5.2.
OPERATION OF THE BUSINESSES.
Between the date of this Agreement and the Closing Date, Sellers will, and will
cause Gish to:
(A)
CONDUCT THE BUSINESS ONLY IN THE ORDINARY COURSE OF BUSINESS;
(B)
USE THEIR REASONABLE BEST EFFORTS TO PRESERVE INTACT THE CURRENT
BUSINESS ORGANIZATION OF GISH, KEEP AVAILABLE THE SERVICES OF THE CURRENT
OFFICERS, EMPLOYEES, AND AGENTS OF GISH, AND MAINTAIN THE RELATIONS AND GOOD
WILL WITH SUPPLIERS, CUSTOMERS, LANDLORDS, CREDITORS, EMPLOYEES, AGENTS, AND
OTHERS HAVING BUSINESS RELATIONSHIPS WITH GISH;
(C)
CONFER WITH BUYER CONCERNING OPERATIONAL MATTERS OF A MATERIAL
NATURE; AND
(D)
OTHERWISE REPORT TO BUYER PERIODICALLY AND AT SUCH OTHER TIMES AND
IN THE FORMAT AS BUYER MAY REASONABLY REQUEST CONCERNING THE STATUS OF THE
BUSINESS,