OF ACCOUNTING OR ACCOUNTING PRACTICE
OR POLICY OTHER THAN THOSE REQUIRED BY GAAP OR BY APPLICABLE LAW (SOLELY TO THE
EXTENT SUCH CHANGE WOULD BE BINDING ON PURCHASER, IT BEING UNDERSTOOD THAT NO
SUCH CHANGE SHALL AFFECT ANY CALCULATION UNDER SECTION 2.01);
(E) ACQUIRE BY MERGING OR CONSOLIDATING WITH, OR BY PURCHASING A SUBSTANTIAL
PORTION OF THE ASSETS OF, OR BY ANY OTHER MANNER, ANY BUSINESS OR ANY
CORPORATION, PARTNERSHIP, ASSOCIATION OR OTHER BUSINESS ORGANIZATION OR DIVISION
THEREOF OR OTHERWISE ACQUIRE ANY ASSETS (OTHER THAN INVENTORY) THAT ARE MATERIAL
TO THE BUSINESS, TAKEN AS A WHOLE;
(F) MAKE OR INCUR ANY CAPITAL EXPENDITURES (OF A NON-EMERGENCY NATURE)(TO THE
EXTENT SUCH CAPITAL EXPENDITURE WOULD CONSTITUTE AN ASSUMED LIABILITY) THAT
EXCEED $250,000 IN THE AGGREGATE, EXCEPT FOR ANY SUCH CAPITAL EXPENDITURES FOR
WHICH SELLER, THE SELLER SUBSIDIARIES AND THEIR AFFILIATES SHALL BE SOLELY
OBLIGATED;
(G) SELL, LEASE, LICENSE OR OTHERWISE DISPOSE OF ANY MATERIAL TRANSFERRED
ASSETS, EXCEPT FOR THE SALE OF INVENTORY IN THE ORDINARY COURSE OF BUSINESS AND
OBSOLETE OR EXCESS EQUIPMENT SOLD OR DISPOSED OF IN THE ORDINARY COURSE OF
BUSINESS;
(H) ENTER INTO OR AMEND ANY LEASE OF REAL PROPERTY THAT CONSTITUTES A
TRANSFERRED ASSET, EXCEPT ANY RENEWALS OF EXISTING LEASEHOLD INTERESTS THAT
CONSTITUTE LEASED PROPERTY IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH
PAST PRACTICE;
(I) ENTER INTO ANY EMPLOYMENT CONTRACT OR COLLECTIVE BARGAINING AGREEMENT,
WRITTEN OR ORAL, OR MODIFY THE TERM OF ANY EXISTING EMPLOYMENT CONTRACT, OTHER
THAN IN COMPLIANCE WITH COMPULSORY APPLICABLE COMPANY, PLANT OR OTHER COLLECTIVE
BARGAINING AGREEMENTS;
(J) EXCEPT AS SET FORTH BELOW, INCREASE OR COMMIT OR PROMISE TO INCREASE THE
CASH COMPENSATION PAYABLE OR TO BECOME PAYABLE TO ANY BUSINESS EMPLOYEE OR MAKE
ANY DISCRETIONARY BONUS OR MANAGEMENT FEE PAYMENT TO ANY SUCH PERSON, EXCEPT
BONUSES OR SALARY INCREASES TO EMPLOYEES AT THE TIMES AND IN THE AMOUNTS
CONSISTENT WITH ITS PAST PRACTICE;
(K) (I) ADOPT, ESTABLISH, AMEND OR TERMINATE ANY SELLER EMPLOYEE BENEFIT PLAN OR
EMPLOYEE POLICIES AND PROCEDURES OR (II) TAKE ANY DISCRETIONARY ACTION, OR OMIT
TO TAKE ANY CONTRACTUALLY REQUIRED ACTION, IF THAT ACTION OR OMISSION COULD
EITHER (A) DEPLETE THE ASSETS OF ANY
27
SELLER EMPLOYEE BENEFIT PLAN OR (B) INCREASE THE LIABILITIES OR OBLIGATIONS
UNDER ANY SUCH SELLER EMPLOYEE BENEFIT PLAN;
(L) WAIVE ANY OF ITS RIGHTS OR CLAIMS THAT IN THE AGGREGATE ARE MATERIAL TO THE
BUSINESS, PROVIDED THAT IT MAY NEGOTIATE AND ADJUST BILLS IN THE COURSE OF GOOD
FAITH DISPUTES WITH CUSTOMERS AND VENDORS IN A MANNER CONSISTENT WITH PAST
PRACTICE;
(M) AMEND IN ANY MATERIAL RESPECT OR TERMINATE ANY BUSINESS CONTRACT OF SELLER
OR ANY OF ITS PERMITS; OR
(N) AGREE, WHETHER IN WRITING OR OTHERWISE, TO DO ANY OF THE FOREGOING.
SECTION 5.02.
Access to Information.
(A) SELLER SHALL AFFORD, AND SHALL CAUSE THE SELLER SUBSIDIARIES TO AFFORD,
PURCHASER AND ITS ACCOUNTANTS, COUNSEL AND OTHER REPRESENTATIVES REASONABLE
ACCESS FOR THE PURPOSE OF FACILITATING THE CLOSING AND THE CONSUMMATION OF THE
OTHER TRANSACTIONS CONTEMPLATED HEREBY, UPON REASONABLE PRIOR NOTICE DURING
NORMAL BUSINESS HOURS