ACTION
BY, FILING WITH OR NOTIFICATION TO, ANY GOVERNMENTAL AUTHORITY, EXCEPT FOR
(I) THE FILING AND RECORDATION OF THE CERTIFICATE OF MERGER AS REQUIRED BY THE
DGCL, AS APPLICABLE, AND (II) SUCH APPROVALS, ACTIONS, FILINGS OR NOTIFICATIONS
THE FAILURE OF WHICH TO MAKE OR OBTAIN, INDIVIDUALLY OR IN THE AGGREGATE, DOES
NOT HAVE AND COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
SECTION 4.04.
BROKERS.
THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY BROKERAGE,
FINDER'S OR OTHER FEE OR COMMISSION TO ANY BROKER, FINDER OR INVESTMENT BANKER
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT BASED UPON
ARRANGEMENTS MADE BY OR ON BEHALF OF EACH OF PARENT AND NEWCO OR ITS AFFILIATES.
25
SECTION 4.05.
SUFFICIENT FUNDS.
PARENT AND NEWCO HAVE AVAILABLE, OR HAS MADE
ARRANGEMENTS TO OBTAIN (THROUGH EXISTING CREDIT ARRANGEMENTS OR OTHERWISE),
SUFFICIENT FUNDS TO PROVIDE BOTH FOR THE MERGER CONSOLIDATION PAYABLE HEREUNDER
AND ALL FEES AND EXPENSES REQUIRED TO BE PAID BY PARENT AND NEWCO RELATED TO THE
MERGER ("SUFFICIENT FUNDS").
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01.
COVENANTS OF THE COMPANY.
THE COMPANY AGREES THAT, DURING THE
PERIOD FROM THE DATE OF THIS AGREEMENT TO THE EARLIER OF THE EFFECTIVE TIME OR
THE TERMINATION DATE, UNLESS OTHERWISE CONTEMPLATED BY THIS AGREEMENT OR THE
VOTING AGREEMENT, REQUIRED BY APPLICABLE LAW OR NEWCO GIVES ITS PRIOR WRITTEN
CONSENT, WHICH DECISION REGARDING CONSENT SHALL BE MADE AS SOON AS REASONABLY
PRACTICABLE, (1) THE BUSINESSES OF THE COMPANY AND ITS SUBSIDIARIES (INCLUDING
THEIR WORKING CAPITAL AND CASH MANAGEMENT PRACTICES, THE COLLECTION OF ACCOUNTS
RECEIVABLE AND THE PAYMENT OF ACCOUNTS PAYABLE (INCLUDING THE WRITING AND
MAILING OF CHECKS WITH RESPECT THERETO)) SHALL BE CONDUCTED ONLY IN, AND THE
COMPANY AND ITS SUBSIDIARIES SHALL NOT TAKE ANY ACTION EXCEPT IN, THE ORDINARY
COURSE OF BUSINESS, IN A MANNER CONSISTENT WITH PAST PRACTICE AND IN COMPLIANCE
WITH APPLICABLE LAWS AND CONTRACTS; (2) THE COMPANY AND ITS SUBSIDIARIES SHALL
EACH PAY ITS RESPECTIVE DEBTS, LIABILITIES AND TAXES WHEN DUE (SUBJECT TO GOOD
FAITH DISPUTES OVER SUCH DEBTS, LIABILITIES OR TAXES) AND SHALL PAY OR PERFORM
THEIR RESPECTIVE OTHER OBLIGATIONS WHEN DUE; (3) THE COMPANY AND ITS
SUBSIDIARIES SHALL EACH USE ITS COMMERCIALLY REASONABLE EFFORTS TO PRESERVE
SUBSTANTIALLY INTACT ITS BUSINESS ORGANIZATION, TO KEEP AVAILABLE THE SERVICES
OF ITS PRESENT COMPANY EMPLOYEES, TO PRESERVE ITS ASSETS AND PROPERTIES IN GOOD
REPAIR AND CONDITION AND TO PRESERVE ITS PRESENT RELATIONSHIPS WITH GOVERNMENTAL
AUTHORITIES, CUSTOMERS, SUPPLIERS AND OTHER PERSONS WITH WHICH THE COMPANY OR
ANY OF ITS SUBSIDIARIES HAS BUSINESS RELATIONS; AND (4) THE COMPANY AND ITS
SUBSIDIARIES SHALL NOT LICENSE ANY MATERIAL COMPANY IP TO A PERSON EXCEPT
NON-EXCLUSIVE OBJECT CODE SOFTWARE LICENSES OF COMPANY PRODUCTS TO DISTRIBUTORS,
RESELLERS AND END USERS IN THE ORDINARY COURSE OF BUSINESS, IN A MANNER
CONSISTENT WITH PAST PRACTICE.
BY WAY OF AMPLIFICATION AND NOT LIMITATION, THE
COMPANY AGREES THAT NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES SHALL,
DURING THE PERIOD FROM THE DATE OF THIS AGREEMENT TO THE EFFECTIVE TIME,