BE EXECUTED AND DELIVERED BY SELLER PURSUANT TO THIS
AGREEMENT AT THE CLOSING WILL, AT THE CLOSING, HAVE BEEN DULY EXECUTED AND
DELIVERED BY SELLER, AND, SUBJECT TO ENTRY OF THE SELLER APPROVAL ORDER,
CONSTITUTES (OR WILL CONSTITUTE AT THE CLOSING, AS APPLICABLE) THE LEGAL, VALID
AND BINDING OBLIGATIONS OF SELLER ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS, SUBJECT TO THE DISCRETION OF THE SELLER BANKRUPTCY COURT
FOR SO LONG AS THE SELLER BANKRUPTCY COURT RETAINS JURISDICTION OVER THE SELLER
CASE.
(D)
THE EXECUTION, DELIVERY AND PERFORMANCE BY
SELLER OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO BE EXECUTED AND
DELIVERED BY IT PURSUANT TO THIS AGREEMENT AND THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY DO NOT AND WILL NOT:
(I)
CONTRAVENE ANY PROVISIONS OF THE
CERTIFICATE OF INCORPORATION OR BYLAWS OF SELLER;
6
(II)
AFTER NOTICE OR LAPSE OF TIME OR BOTH,
RESULT IN A MATERIAL VIOLATION, MATERIAL CONFLICT WITH, OR MATERIAL BREACH OF
ANY PROVISION OF, CONSTITUTE A MATERIAL DEFAULT UNDER, RESULT IN OR PERMIT THE
MATERIAL MODIFICATION, REVOCATION, CANCELLATION, TERMINATION OR ACCELERATION OF,
ANY CONTRACT TO WHICH SELLER IS A PARTY OR BY WHICH ANY OF ITS PROPERTIES OR
ASSETS ARE BOUND OR OTHERWISE SUBJECT OR REQUIRE ANY CONSENT OR WAIVER OF ANY
PARTY TO ANY SUCH CONTRACT;
(III)
SUBJECT TO ENTRY OF THE SELLER APPROVAL
ORDER, VIOLATE OR CONFLICT WITH ANY LAW APPLICABLE TO SELLER OR ITS BUSINESS OR
ITS PROPERTIES; AND
(IV)
EXCEPT FOR THE SELLER APPROVAL ORDER AND ANY
FILING REQUIRED UNDER THE SECURITIES EXCHANGE ACT, REQUIRE ANY AUTHORIZATION,
CONSENT, ORDER, PERMIT OR APPROVAL OF, OR NOTICE TO, OR FILING, REGISTRATION OR
QUALIFICATION WITH, ANY GOVERNMENT AUTHORITY.
3.3
TITLE.
SUBJECT TO ANY EFFECTS RESULTING
FROM THE SELLER CASE, SELLER HAS TITLE OF THE SHARES, FREE AND CLEAR OF ALL
LIENS OTHER THAN PERMITTED LIENS.
3.4
BROKERS.
NEITHER SELLER NOR ITS DIRECTORS,
OFFICER OR EMPLOYEES, HAS EMPLOYED ANY BROKER OR FINDER OR HAS INCURRED OR WILL
INCUR ANY BROKER'S, FINDER'S OR SIMILAR FEES, COMMISSIONS OR EXPENSES, IN EACH
CASE, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT THAT WOULD BE PAYABLE BY BUYER OR ITS AFFILIATES
(OTHER THAN SELLER).
ARTICLE IV
COVENANTS
4.1
ANNOUNCEMENTS.
BETWEEN THE DATE HEREOF AND
UNTIL THE EARLIEST DATE ON WHICH THE ENTIRE PURCHASE PRICE HAS BEEN PAID
PURSUANT TO THIS AGREEMENT, THE PARTIES AGREE TO USE THEIR REASONABLE BEST
EFFORTS TO CAUSE THE SUBSTANCE OF ALL PUBLIC RELEASES OR PUBLIC ANNOUNCEMENTS BY
EITHER PARTY WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY TO BE MUTUALLY AGREEABLE, EXCEPT AS AND TO THE EXTENT THAT A PARTY
DETERMINES IN GOOD FAITH THAT IT IS OBLIGATED BY LAW TO MAKE A PUBLIC RELEASE OR
PUBLIC ANNOUNCEMENT, IN WHICH CASE SUCH PARTY SHALL GIVE NOTICE TO THE OTHER
PARTY, TO THE EXTENT PRACTICABLE, IN ADVANCE OF SUCH PARTY'S INTENT TO MAKE SUCH
RELEASE OR ANNOUNCEMENT.
EACH PARTY ACKNOWLEDGES TO THE OTHER PARTY THAT SUCH
PARTY HAS DETERMINED THAT