THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE OTHER INSTRUMENTS AND AGREEMENTS
CONTEMPLATED HEREBY BY THE PURCHASER WILL NOT RESULT IN ANY VIOLATION OF, BE IN
CONFLICT WITH OR CONSTITUTE A DEFAULT UNDER, ANY LAW, STATUTE, REGULATION
ORDINANCE, MATERIAL CONTRACT OR AGREEMENT, INSTRUMENT, JUDGMENT, DECREE OR ORDER
TO WHICH THE PURCHASER IS A PARTY OR BY WHICH IT IS BOUND.
3.3.
BROKERS.
NO FINDER, BROKER, AGENT, FINANCIAL
ADVISOR OR OTHER INTERMEDIARY HAS ACTED ON BEHALF OF THE PURCHASER IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS, AND NO SUCH PERSON IS ENTITLED
TO ANY FEE, PAYMENT, COMMISSION OR OTHER CONSIDERATION IN CONNECTION THEREWITH
AS A RESULT OF ANY ARRANGEMENT MADE BY THE PURCHASER.
3.4.
DUE DILIGENCE BY PURCHASER.
PURCHASER HAS
CONDUCTED ITS OWN INDEPENDENT REVIEW AND ANALYSIS OF THE COMPANY AND THE
SUBSIDIARY AND THE BUSINESS AND ACKNOWLEDGES THAT SELLER AND THE COMPANY HAVE
PROVIDED THE PURCHASER WITH SATISFACTORY ACCESS TO THE PERSONNEL, PROPERTIES,
PREMISES AND RECORDS OF THE BUSINESS FOR THIS PURPOSE, INCLUDING ACCESS TO
DOCUMENTATION RELATING TO THE COMPANY, THE SUBSIDIARY AND THE BUSINESS CONTAINED
IN THE DATA ROOM SET UP BY THE SELLER FOR THIS PURPOSE.
PURCHASER HAS RELIED
SOLELY UPON ITS OWN INVESTIGATION AND ANALYSIS, AND PURCHASER ACKNOWLEDGES THAT
NEITHER THE SELLER NOR THE COMPANY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY OF THE INFORMATION
PROVIDED OR MADE AVAILABLE TO PURCHASER, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE 2 OF THIS AGREEMENT.
3.5.
NO BREACH.
THE
PURCHASER IS NOT AWARE OF ANY FACT OR CIRCUMSTANCE, WHICH CONSTITUTE A BREACH OF
ANY OF THE REPRESENTATIONS AND WARRANTIES IN ACCORDANCE WITH THIS AGREEMENT,
WHICH COULD ENTITLE THE PURCHASER TO RAISE A CLAIM AGAINST THE SELLER HEREUNDER.
17
ARTICLE 4
COVENANTS OF THE SELLER AND THE PURCHASER
4.1.
CONFIDENTIALITY.
FOLLOWING THE CLOSING, THE
SELLER SHALL NOT, DIRECTLY OR INDIRECTLY, DISCLOSE, DIVULGE OR MAKE USE OF ANY
TRADE SECRETS OR OTHER INFORMATION OF A BUSINESS, FINANCIAL, MARKETING,
TECHNICAL OR OTHER NATURE PERTAINING TO THE COMPANY, THE
SUBSIDIARY OR THE
BUSINESS, INCLUDING INFORMATION OF OTHERS THAT THE COMPANY OR THE SUBSIDIARY HAS
AGREED TO KEEP CONFIDENTIAL, EXCEPT TO THE EXTENT THAT SUCH INFORMATION SHALL
HAVE BECOME PUBLIC KNOWLEDGE OTHER THAN BY BREACH OF THIS AGREEMENT BY THE
SELLER, EXCEPT TO THE EXTENT THAT DISCLOSURE OF SUCH INFORMATION IS REQUIRED BY
LAW.
NOTWITHSTANDING THE FOREGOING, THE SELLER AND THE PURCHASER AGREE THAT
THIS RESTRICTION AND COVENANT IN NO EVENT SHALL BE INTERPRETED AS TO LIMIT THE
SELLER'S AND ITS AFFILIATES' ABILITY TO CONTINUE TO USE INFORMATION ABOUT THE
COMPANY AND THE SUBSIDIARY AND THEIR RESPECTIVE PRODUCTS AND SERVICES ONLY FOR
SO LONG AS AND SOLELY IN CONNECTION WITH THEIR ON-GOING CONTRACTUAL BUSINESS
RELATIONSHIP WITH THE COMPANY AND THE SUBSIDIARY, PROVIDED THAT THE INTERNAL USE
BY THE SELLER AND ITS AFFILIATES OF ANY SUCH INFORMATION SOLELY IN
CONNECTION
WITH DETERMINING WHETHER TO USE THE PRODUCTS OR SERVICES OF THE COMPANY OR THE
SUBSIDIARY OR ONE OF THEIR