referred to herein as a "Proposed Acquisition Transaction")
other than with the Buyers, their Affiliates and the Buyers' Representatives.
None of the Seller Parties shall, directly or indirectly, through any Affiliate,
officer, director, employee, Sellers' Representative or otherwise, solicit,
initiate or encourage the submission of any proposal or offer from any Person
(including, without limitation, a "person" as defined in Section 13(d)(3) of the
Exchange Act) relating to any Proposed Acquisition Transaction.
The Seller
Parties represent that they are not now engaged in discussions or negotiations
with any Person other than the Buyers with respect to a Proposed Acquisition
Transaction.
47
7.16.
Notifications.
(A)
SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, EACH OF THE PARTIES WILL USE COMMERCIALLY REASONABLE EFFORTS TO
(I) PROMPTLY NOTIFY THE OTHER PARTIES OF (A) ANY REPRESENTATION OR WARRANTY MADE
BY IT CONTAINED IN THIS AGREEMENT THAT IS QUALIFIED AS TO MATERIALITY BECOMING
UNTRUE OR INACCURATE AS SO QUALIFIED IN ANY RESPECT OR ANY SUCH REPRESENTATION
OR WARRANTY THAT IS NOT SO QUALIFIED BECOMING UNTRUE OR INACCURATE IN ANY
MATERIAL RESPECT, (B) THE FAILURE BY IT TO COMPLY IN ANY MATERIAL RESPECT WITH
OR SATISFY IN ANY MATERIAL RESPECT ANY COVENANT, CONDITION OR AGREEMENT TO BE
COMPLIED WITH OR SATISFIED BY IT UNDER THIS AGREEMENT, AND (C) ANY CHANGE OR
EVENT WHICH, INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD A MATERIAL ADVERSE EFFECT
ON THE BUYERS OR A MATERIAL ADVERSE EFFECT; AND (II) PROMPTLY PROVIDE THE OTHER
PARTY WITH COPIES OF ALL FILINGS MADE BY SUCH PARTY OR ANY AFFILIATES THEREOF
WITH ANY GOVERNMENTAL ENTITY IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
(B)
THE SELLER PARTIES WILL, FROM TIME TO TIME
PRIOR TO THE CLOSING (BUT NO MORE THAN ONCE IN ANY 30-DAY PERIOD), PROMPTLY
SUPPLEMENT OR AMEND ANY OF THE SELLER PARTIES' SCHEDULES RELATING TO ARTICLE V
WITH RESPECT TO ANY MATTER THAT EXISTED AS OF THE DATE OF THIS AGREEMENT AND
SHOULD HAVE BEEN SET FORTH OR DESCRIBED IN SUCH SCHEDULE.
IF THE MATTERS
DISCLOSED ON SUCH SUPPLEMENTED OR AMENDED SCHEDULES WOULD, INDIVIDUALLY OR IN
THE AGGREGATE, BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT, THEN THE
BUYERS MAY ELECT TO TERMINATE THIS AGREEMENT WITHIN 15 DAYS AFTER RECEIPT OF THE
SUPPLEMENTED OR AMENDED SCHEDULE, BY PROVIDING WRITTEN NOTICE THEREOF TO THE
SELLER PARTIES.
IF THE BUYERS ELECT TO TERMINATE THIS AGREEMENT PURSUANT TO
THIS SECTION 7.16(B), THEN THE SELLER PARTIES WILL HAVE A 20-DAY PERIOD TO CURE
THE EVENT CAUSING THE AMENDED OR SUPPLEMENTED SCHEDULE, PROVIDED THAT, IF SO
CURED WITHIN SUCH 20-DAY PERIOD, THIS AGREEMENT SHALL NOT BE TERMINATED.
NO
DISCLOSURE BY THE SELLER PARTIES PURSUANT TO THIS SECTION 7.16(B), HOWEVER, WILL
BE DEEMED TO AMEND OR SUPPLEMENT ANY OF THE SELLER PARTIES' SCHEDULES, TO HAVE
QUALIFIED THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT OR TO
HAVE REDUCED OR LIMITED IN ANY WAY THE INDEMNIFICATION OBLIGATIONS OF THE SELLER
PARTIES PURSUANT TO ARTICLE IX, UNLESS THE BUYERS EXPRESSLY CONSENT TO SUCH
SUPPLEMENT IN WRITING.