SCHEDULE).
ARTICLE IV.
CONDUCT PRIOR TO THE CLOSING DATE
SECTION 4.1
CONDUCT OF BUSINESS OF THE
SELLERS.
EXCEPT AS SET FORTH ON SECTION 4.1 OF THE DISCLOSURE SCHEDULE, DURING
THE PERIOD FROM THE DATE OF THIS AGREEMENT AND CONTINUING UNTIL THE EARLIER OF
THE TERMINATION OF THIS AGREEMENT AND THE CLOSING, THE SELLERS AGREE (UNLESS THE
SELLERS ARE REQUIRED TO TAKE SUCH ACTION PURSUANT TO THIS AGREEMENT OR THE
ACQUIRER SHALL GIVE ITS PRIOR CONSENT IN WRITING WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED) TO CARRY ON ITS BUSINESS IN THE
USUAL, REGULAR AND ORDINARY COURSE CONSISTENT WITH PAST PRACTICE, TO PAY OR
PERFORM ITS LIABILITIES, TAXES AND OBLIGATIONS CONSISTENT WITH THE SELLERS' PAST
PRACTICES (OTHER THAN LIABILITIES, TAXES AND OTHER OBLIGATIONS, IF ANY,
CONTESTED IN GOOD FAITH THROUGH APPROPRIATE PROCEEDINGS), AND, TO THE EXTENT
CONSISTENT WITH SUCH BUSINESS, TO USE ALL COMMERCIALLY REASONABLE EFFORTS TO
PRESERVE INTACT ITS PRESENT BUSINESS ORGANIZATION, KEEP AVAILABLE THE SERVICES
OF ITS PRESENT OFFICERS AND KEY EMPLOYEES AND PRESERVE ITS RELATIONSHIPS WITH
CUSTOMERS, SUPPLIERS, DISTRIBUTORS, LICENSORS, LICENSEES, INDEPENDENT
CONTRACTORS AND OTHER PERSONS HAVING BUSINESS DEALINGS WITH IT, ALL WITH THE
EXPRESS PURPOSE AND INTENT OF PRESERVING ITS GOODWILL AND ONGOING BUSINESSES AT
THE CLOSING DATE.
IN ADDITION, THE SELLERS SHALL, PRIOR TO THE CLOSING,
COOPERATE IN GOOD FAITH WITH THE ACQUIRER TO FACILITATE THE TRANSITION OF THE
SELLERS' CUSTOMERS AND VENDORS, INCLUDING, BUT NOT LIMITED TO, OBTAINING
ASSIGNMENTS, CONSENTS, AND ASSURANCES FROM SUCH CUSTOMERS AND VENDORS WITH
RESPECT TO THE ACQUISITION; PROVIDED, HOWEVER, THE SELLERS SHALL NOT BE REQUIRED
TO MAKE ANY PAYMENTS TO OBTAIN SUCH ASSIGNMENTS, CONSENTS OR ASSURANCES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DURING THE PERIOD FROM THE
DATE OF THIS AGREEMENT AND CONTINUING UNTIL THE EARLIER OF THE TERMINATION OF
THIS AGREEMENT OR THE CLOSING, EXCEPT AS SET FORTH IN THE DISCLOSURE SCHEDULE OR
AS REQUIRED OR EXPRESSLY PERMITTED BY
29
THIS AGREEMENT OR WITH THE PRIOR WRITTEN CONSENT OF THE ACQUIRER (NOT TO BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED), THE SELLERS SHALL NOT DO, CAUSE
OR PERMIT ANY OF THE FOLLOWING:
(A)
CHARTER DOCUMENTS:
CAUSE OR PERMIT ANY
AMENDMENTS TO ITS ARTICLES OF INCORPORATION OR BYLAWS;
(B)
CONTRACTS:
ENTER INTO ANY CONTRACT OR
COMMITMENT WHICH WOULD BE A MATERIAL CONTRACT IF ENTERED INTO PRIOR TO THE DATE
HEREOF, OR VIOLATE, AMEND OR OTHERWISE MODIFY OR WAIVE ANY OF THE TERMS OF ANY
OF ITS MATERIAL CONTRACTS;
(C)
INTELLECTUAL PROPERTY:
DISPOSE OF, LICENSE
OR TRANSFER TO ANY PERSON OR ENTITY ANY RIGHTS TO ANY SELLER INTELLECTUAL
PROPERTY OTHER THAN NON-EXCLUSIVE LICENSES IN CONNECTION WITH THE SALE OF
SELLERS' PRODUCTS IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST
PRACTICE;
(D)
EXCLUSIVE RIGHTS:
ENTER INTO OR AMEND ANY
AGREEMENT PURSUANT TO WHICH ANY OTHER PARTY IS GRANTED EXCLUSIVE MARKETING OR
OTHER EXCLUSIVE RIGHTS OF ANY TYPE OR SCOPE WITH RESPECT TO ANY OF SELLERS'
PRODUCTS OR TECHNOLOGY;
(E)
DISPOSITIONS:
SELL, LEASE, LICENSE OR
OTHERWISE DISPOSE OF OR ENCUMBER ANY OF THE PURCHASED ASSETS, EXCEPT FOR SALES