would not prevent or materially delay the consummation by the
Purchaser of the transactions contemplated by this Agreement and the Ancillary
Agreements.
Section 5.04
Litigation.
No Action by or against the Purchaser or
any of its Affiliates is pending or, to the best knowledge of the Purchaser,
threatened, which could affect the legality, validity or enforceability of this
Agreement, any Ancillary Agreement or the consummation of the transactions
contemplated hereby or thereby.
Section 5.05
Brokers.
No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser.
34
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.01
Conduct of Business.
(a)
From the date of this Agreement through the Closing Date, except as
otherwise permitted by this Agreement or with the prior written consent of the
Purchaser (which consent shall not be unreasonably withheld, conditioned, or
delayed by the Purchaser), the Sellers shall cause the Company to:
(I)
OPERATE THE BUSINESS AS PRESENTLY OPERATED AND ONLY IN THE
ORDINARY COURSE AND IN ACCORDANCE WITH APPLICABLE LAW (OTHER THAN HEALTH CARE
LAWS);
(II)
USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ALL OF THE
TANGIBLE ASSETS OF THE BUSINESS IN GOOD OPERATING CONDITION, REASONABLE WEAR AND
TEAR EXCEPTED, AND TAKE ALL STEPS REASONABLY NECESSARY TO MAINTAIN THE
INTANGIBLE ASSETS OF THE BUSINESS;
(III)
USE COMMERCIALLY REASONABLE EFFORTS TO KEEP AVAILABLE THE
SERVICES OF THE COMPANY'S OFFICERS AND EMPLOYEES;
(IV)
NOT TAKE ANY ACTION OR ENTER INTO ANY AGREEMENT OF THE TYPE
DESCRIBED IN SECTION 4.06(B); AND
(V)
USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN SATISFACTORY
RELATIONSHIPS WITH ITS CUSTOMERS, SUPPLIERS AND OTHERS HAVING COMMERCIALLY
BENEFICIAL RELATIONSHIPS WITH THE BUSINESS.
The Purchaser acknowledges that the Sellers intend to cause the Company to
distribute cash and cash equivalents to the Sellers prior to the Closing Date to
the extent not required to meet the Adjusted Working Capital Benchmark and
agrees that any such distribution will not be deemed to violate the covenant set
forth in Section 6.01(a).
(B)
THE SELLERS SHALL CAUSE THE COMPANY NOT TO, WITHOUT THE PURCHASER'S
PRIOR WRITTEN CONSENT, (I) MAKE ANY CHANGE (OR FILE ANY SUCH CHANGE) IN ANY
MATERIAL METHOD OF TAX ACCOUNTING, (II) MAKE, CHANGE OR RESCIND ANY MATERIAL TAX
ELECTION, (III) SETTLE OR COMPROMISE ANY MATERIAL TAX LIABILITY, (IV) FILE ANY
MATERIAL AMENDED TAX RETURN, (V) KNOWINGLY SURRENDER ANY RIGHT TO A MATERIAL TAX
REFUND CLAIM, (VI) ENTER INTO ANY CLOSING AGREEMENT RELATING TO A MATERIAL
AMOUNT OF TAXES, OR (VII) WAIVE OR EXTEND THE STATUTE OF LIMITATIONS IN RESPECT
OF ANY MATERIAL AMOUNT OF TAXES (OTHER THAN PURSUANT TO EXTENSIONS OF TIME TO
FILE TAX RETURNS OBTAINED IN THE ORDINARY COURSE OF BUSINESS).
(C)
BETWEEN THE DATE HEREOF AND THE CLOSING DATE, TO THE EXTENT THE SELLER
HAS KNOWLEDGE OF THE COMMENCEMENT OR SCHEDULING OF ANY TAX AUDIT, THE ASSESSMENT
OF ANY TAX, THE ISSUANCE OF ANY NOTICE OF TAX DUE OR ANY BILL FOR