ACT OF 1988, AFFECTING IN
WHOLE OR IN PART ANY SITE OF EMPLOYMENT, FACILITY, OPERATING UNIT OR EMPLOYEE OF
THE COMPANY OR ANY OF ITS SUBSIDIARIES;
(M)
OTHER THAN AS SET FORTH IN SCHEDULE 5.01(M), MAKE ANY LOANS, ADVANCES OR
CAPITAL CONTRIBUTIONS (INCLUDING ANY "KEEP WELL" OR OTHER CONTRACT TO MAINTAIN
ANY FINANCIAL STATEMENT CONDITION OF ANOTHER PERSON) TO, OR INVESTMENTS IN, ANY
OTHER PERSON, EXCEPT FOR LOANS, ADVANCES AND CAPITAL CONTRIBUTIONS TO
SUBSIDIARIES
THAT ARE WHOLLY-OWNED BY THE COMPANY AND ARE IN EXISTENCE ON THE
DATE OF THIS AGREEMENT IN THE ORDINARY COURSE OF BUSINESS AND CONSISTENT WITH
PAST PRACTICES;
(N)
ENTER INTO ANY CONTRACT WITH PROHA OR ANY OF ITS AFFILIATES;
(O)
HIRE ANY EMPLOYEE EXCEPT FOR THE REPLACEMENT OF ANY CURRENT COMPANY
EMPLOYEE WHOSE EMPLOYMENT WITH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS
TERMINATED FOR ANY REASON (WITH SUCH REPLACEMENT EMPLOYEE RECEIVING
SUBSTANTIALLY SIMILAR OR LESSER COMPENSATION AND BENEFITS AS SUCH TERMINATED
COMPANY EMPLOYEE);
(P)
ENTER INTO A CONTRACT PROVIDING FOR A MAINTENANCE TERM LONGER THAN TWELVE
MONTHS;
(Q)
PROPOSE OR CONSENT TO ANY MATERIAL CHANGE TO THE PRICING OF ANY PRODUCTS
SOLD BY THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR OFFER ANY MATERIAL DISCOUNTS
TO ANY CUSTOMERS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, EXCEPT IN THE
ORDINARY COURSE OF BUSINESS AND CONSISTENT WITH PAST PRACTICE;
(R)
ENTER INTO CONTRACTS CONTAINING "MOST FAVORED NATION," PRICE PROTECTION OR
SIMILAR PROVISIONS;
(S)
FAIL TO MAINTAIN IN FULL FORCE AND EFFECT INSURANCE POLICIES COVERING THE
COMPANY AND ITS SUBSIDIARIES AND THEIR RESPECTIVE PROPERTIES, ASSETS AND
BUSINESSES IN A FORM AND AMOUNT CONSISTENT WITH PRUDENT INDUSTRY PRACTICE;
28
(T)
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, TAKE ANY ACTION THAT COULD
REASONABLY BE EXPECTED TO RESULT IN (I) ANY REPRESENTATION AND WARRANTY OF THE
COMPANY SET FORTH IN THIS AGREEMENT (A) THAT IS QUALIFIED AS TO MATERIALITY OR
MATERIAL ADVERSE EFFECT BECOMING UNTRUE OR INACCURATE IN ANY RESPECT OR (B) THAT
IS NOT SO QUALIFIED BECOMING UNTRUE OR INACCURATE IN ANY MATERIAL RESPECT OR
(II) ANY CONDITION TO THE MERGER SET FORTH IN ARTICLE VII NOT BEING SATISFIED;
(U)
TAKE ANY ACTION THAT COULD REASONABLY BE EXPECTED TO, DIRECTLY OR
INDIRECTLY PREVENT OR MATERIALLY IMPAIR OR DELAY THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT TO THE EXTENT SPECIFICALLY PERMITTED BY
SECTION 6.03 AND ARTICLE VIII); OR
(V)
TAKE, OFFER, PROPOSE TO TAKE OR ENTER INTO OR AMEND ANY CONTRACT TO TAKE,
OFFER OR PROPOSE ANY OF THE ACTIONS DESCRIBED IN SECTIONS 5.01(A) THROUGH
5.01(U).
In addition to the foregoing, as soon as practicable following the date hereof,
the Company shall (i) use its commercially reasonable efforts to obtain the
consents, waivers and approvals set forth on Schedule 5.01(i) and 7.02(e)
hereof, and (ii) take, or cause its subsidiaries to take, the corporate actions
set forth on Schedule 5.01(ii) in a manner reasonably satisfactory to Newco.
SECTION 5.02.
CONDUCT OF BUSINESS BY NEWCO.
NEWCO AGREES THAT, DURING THE
PERIOD FROM THE DATE OF THIS AGREEMENT