OR OTHER REMEDY OR THE RECEIPT OF SUCH A WAIVER,
SELLER, BUYER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR AFFILIATES ARE
NONETHELESS, IN THE OPINION OF COUNSEL, LEGALLY COMPELLED TO DISCLOSE
CONFIDENTIAL INFORMATION, THEN SELLER OR BUYER MAY DISCLOSE THAT PORTION OF THE
CONFIDENTIAL INFORMATION WHICH SUCH COUNSEL ADVISES IS LEGALLY REQUIRED TO BE
DISCLOSED, PROVIDED THAT SUCH PARTY USES ITS REASONABLE EFFORTS TO PRESERVE THE
CONFIDENTIALITY OF THE CONFIDENTIAL INFORMATION IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION 9.3, WHEREUPON SUCH DISCLOSURE SHALL NOT CONSTITUTE A
BREACH OF THIS AGREEMENT.
(D)
NOTWITHSTANDING THE FOREGOING NOTHING SET FORTH IN THIS SECTION
9.3 SHALL PROHIBIT BUYER FROM DISCLOSING ANY CONFIDENTIAL INFORMATION TO THE
EXTENT (I) REQUIRED BY LEGAL REQUIREMENT TO BE DISCLOSED BY BUYER IN ANY FILINGS
REQUIRED TO BE MADE WITH THE SEC OR AMEX OR (II) THAT BUYER IN GOOD FAITH
DETERMINES SUCH DISCLOSURE TO BE NECESSARY IN CONNECTION WITH EXERCISING ITS
FIDUCIARY DUTIES IN ITS COMMUNICATIONS TO THE STOCKHOLDERS OF BUYER.
9.4
FURTHER ASSURANCES.
FROM AND AFTER THE CLOSING DATE, SELLER AND
BUYER SHALL TAKE ALL FURTHER ACTIONS CONSISTENT WITH THE INTENT OF THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS NECESSARY (I) TO ENABLE BUYER TO OPERATE
THE PURCHASED BUSINESS IN SUBSTANTIALLY THE SAME MANNER OPERATED PRIOR TO THE
CLOSING DATE, (II) TO ENABLE SELLER TO CONTINUE TO OPERATE THE RETAINED BUSINESS
IN THE MANNER CONTEMPLATED BY THE ONGOING BUSINESS AGREEMENTS, AND (III) UPON
SUCCESSFUL COMPLETION OF SELLER'S OBLIGATIONS UNDER THE ANCILLARY AGREEMENTS, TO
ENABLE BUYER TO OPERATE THE PURCHASED BUSINESS ON AN INDEPENDENT BASIS, IN EACH
CASE, ASSUMING DUE PERFORMANCE BY BUYER AND SELLER OF THEIR RESPECTIVE
OBLIGATIONS UNDER THIS AGREEMENT AND THE ANCILLARY AGREEMENTS.
IN FURTHERANCE
OF THE FOREGOING, FROM TIME TO TIME AFTER THE CLOSING DATE, THE PARTIES HERETO
AGREE TO (I) FURNISH UPON REQUEST TO EACH OTHER SUCH FURTHER ASSURANCES,
INFORMATION, DOCUMENTS AND INSTRUMENTS OF TRANSFER OR ASSIGNMENT AND (II)
PROMPTLY EXECUTE, ACKNOWLEDGE, AND DELIVER ANY SUCH FURTHER ASSURANCES,
DOCUMENTS AND INSTRUMENTS OF TRANSFER OR ASSIGNMENT, IN EACH CASE THAT THE OTHER
PARTY MAY REASONABLY REQUEST FOR THE PURPOSE OF CARRYING OUT THE INTENT OF THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS, INCLUDING WITHOUT LIMITATION TO TRANSFER
AND ASSIGN TO BUYER THOSE ASSETS OF SELLER USED OR HELD FOR USE IN THE CONDUCT
OF THE PURCHASED BUSINESS TO THE EXTENT NOT OTHERWISE TRANSFERRED HEREBY OR
THEREBY.
AS PROMPTLY AS POSSIBLE AFTER THE CLOSING DATE, SELLER SHALL MAKE ANY
FILINGS AND/OR GIVE ANY NOTICES REQUIRED BY APPLICABLE LEGAL REQUIREMENTS TO BE
MADE OR GIVEN BY THEM IN ORDER TO CONSUMMATE THE
61
TRANSACTIONS THAT WERE NOT MADE OR GIVEN PRIOR TO THE CLOSING, SHALL OBTAIN ALL
OTHER REQUIRED CONSENTS NOT OBTAINED PRIOR TO THE CLOSING, AND SHALL USE THEIR
BEST EFFORT TO APPORTION ANY SHARED CONTRACT NOT APPORTIONED PRIOR TO THE
CLOSING; PROVIDED THAT NEITHER BUYER NOR SELLER SHALL BE REQUIRED TO MAKE ANY
PAYMENTS, COMMENCE LITIGATION OR AGREE TO ANY MODIFICATION TO THE TERMS OF ANY
CONTRACT IN ORDER TO OBTAIN ANY SUCH CONSENT OR