TO ENTER INTO THIS AGREEMENT, AND
EACH OF THE ANCILLARY AGREEMENTS TO WHICH IT IS A PARTY, AND TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
THIS AGREEMENT, AND EACH OF THE
ANCILLARY AGREEMENTS HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY BUYER
AND NO OTHER CORPORATE ACTION ON PART OF BUYER IS NECESSARY TO AUTHORIZE THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS OR TO CONSUMMATE THE TRANSACTIONS SO
CONTEMPLATED.
THIS AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS (ASSUMING DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY SELLER) CONSTITUTES A LEGAL, VALID AND
BINDING OBLIGATION OF BUYER ENFORCEABLE AGAINST BUYER IN ACCORDANCE WITH ITS
TERMS.
SECTION 4.02.
NO CONFLICT.
NEITHER THE EXECUTION NOR
DELIVERY OF THIS AGREEMENT, OR THE ANCILLARY AGREEMENTS BY BUYER NOR THE
CONSUMMATION BY BUYER OF ANY OF THE
16
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, WILL (A) CONFLICT WITH OR VIOLATE
THE CERTIFICATE OF INCORPORATION, BY-LAWS, OR SIMILAR ORGANIZATIONAL DOCUMENTS
OF BUYER (B) RESULT IN A VIOLATION OR BREACH OF, OR CONSTITUTE (WITH OR WITHOUT
DUE NOTICE OR LAPSE OF TIME OR BOTH) A DEFAULT (OR GIVE RISE TO ANY RIGHT OF
TERMINATION, MODIFICATION, CANCELLATION OR ACCELERATION OR LOSS OF BENEFITS)
UNDER, ANY OF THE TERMS, CONDITIONS OR PROVISIONS OF ANY CONTRACT TO WHICH BUYER
IS A PARTY OR (C) VIOLATE ANY PERMIT APPLICABLE TO BUYER; EXCEPT IN THE CASES OF
CLAUSES (B) OR (C) FOR THOSE VIOLATIONS, BREACHES OR DEFAULTS THAT WOULD
REASONABLY BE EXPECTED TO NOT HAVE A MATERIAL ADVERSE AFFECT ON THE ABILITY OF
BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND EACH OF
THE ANCILLARY AGREEMENTS.
SECTION 4.03.
CONSENTS AND APPROVALS.
THE EXECUTION AND
DELIVERY OF THIS AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS BY BUYER DOES
NOT, AND THE PERFORMANCE OF THIS AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS
BY BUYER WILL NOT, REQUIRE ANY PERMIT OR CONSENT OF ANY GOVERNMENTAL AUTHORITY
OR ANY OTHER PERSON EXCEPT AS SUCH MAY HAVE BEEN OBTAINED, TAKEN OR MADE ON OR
PRIOR TO THE DATE HEREOF (OTHER THAN PRE-CONSUMMATION TRADE OR COMPETITION
FILINGS RELATING TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AS TO WHICH
NO REPRESENTATION IS MADE ALTHOUGH NO CONCESSION IS MADE THAT ANY SUCH FILINGS
ARE REQUIRED).
SECTION 4.04.
LITIGATION.
NO ACTION IS PENDING OR, TO
THE KNOWLEDGE OF BUYER, THREATENED AGAINST BUYER WHICH SEEKS TO DELAY OR PREVENT
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR WHICH MAY ADVERSELY
AFFECT OR RESTRICT BUYER'S ABILITY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 4.05.
BROKERS AND FINDERS.
NEITHER BUYER, NOR
ANY OF ITS OFFICERS, DIRECTORS OR EMPLOYEES HAS EMPLOYED ANY BROKER OR FINDER OR
INCURRED ANY LIABILITY FOR ANY BROKERAGE FEES, COMMISSIONS OR FINDER'S FEES IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.01.
EMPLOYEES.
IN ADDITION TO THE RETAINED
LIABILITIES, SELLER SHALL RETAIN ALL LIABILITIES AND CLAIMS FOR SALARY, BONUSES,
BACK-PAY, COMMISSIONS, BENEFITS OR OTHER COMPENSATION BASED CLAIMS DUE EMPLOYEES
OR FORMER EMPLOYEES OF SELLER (WHETHER OR NOT ENGAGED IN THE BUSINESS) ARISING
PRIOR TO,