FORTH IN ARTICLE VII IMPOSSIBLE
OR UNLIKELY.
(B)
IF ANY EVENT, CONDITION, FACT OR CIRCUMSTANCE THAT IS REQUIRED TO
BE DISCLOSED PURSUANT TO SECTION 5.4(A) REQUIRES ANY CHANGE IN THE COMPANY
DISCLOSURE SCHEDULE, OR IF ANY SUCH EVENT, CONDITION, FACT OR CIRCUMSTANCE WOULD
REQUIRE SUCH A CHANGE ASSUMING THE COMPANY DISCLOSURE SCHEDULE WERE DATED AS OF
THE DATE OF THE OCCURRENCE, EXISTENCE OR DISCOVERY OF SUCH EVENT, CONDITION,
FACT OR CIRCUMSTANCE, THEN THE COMPANY SHALL PROMPTLY (UPON DISCOVERY) DELIVER
TO PURCHASER AN UPDATE TO THE DISCLOSURE SCHEDULE SPECIFYING SUCH CHANGE.
NO
SUCH UPDATE SHALL BE DEEMED TO SUPPLEMENT OR AMEND THE COMPANY DISCLOSURE
SCHEDULE FOR THE PURPOSE OF (I) DETERMINING THE ACCURACY OF ANY OF THE
REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY OR SELLERS IN THIS AGREEMENT,
OR (II) DETERMINING WHETHER ANY OF THE CONDITIONS SET FORTH IN ARTICLE VII HAS
BEEN SATISFIED ; PROVIDED, HOWEVER, IF (X) THE COMPANY AND SELLERS'
REPRESENTATIVE EXPRESSLY ACKNOWLEDGE (IN ANY SUCH NOTICE DELIVERED BY THE
COMPANY AND SELLERS' REPRESENTATIVE) IN GOOD FAITH THAT THAT PURCHASER HAS THE
RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 9 BY REASON OF SUCH CHANGE
(TAKING INTO ACCOUNT ANY PRIOR CHANGES SO DISCLOSED) AND (Y) PURCHASER FAILS TO
EXERCISE SUCH RIGHT TO TERMINATE THIS AGREEMENT, THEN ANY RIGHT OF PURCHASER TO
INDEMNIFICATION (AS A RESULT OF THE BREACHES RELATING TO THE EVENTS, CONDITIONS,
FACTS AND/OR CIRCUMSTANCES GIVING RISE TO THE CHANGE AND ANY SUCH PRIOR CHANGES)
SHALL BE DEEMED WAIVED, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO
THE CONTRARY.
(C)
DERIVATIVE ACTIVITY.
COMPANY HEREBY AGREES TO PREPARE AND PROVIDE
TO PURCHASER ON THE CLOSING DATE A LIST (THE "CLOSING DERIVATIVE LIST") OF
(A) ALL OUTSTANDING DERIVATIVE TRANSACTIONS TO WHICH COMPANY IS A PARTY AS OF
THE DATE IMMEDIATELY PRIOR TO THE CLOSING DATE, WHETHER OR NOT COMPANY CONTINUES
TO HAVE ANY OBLIGATIONS THEREUNDER AND (B) ALL TERMINATED DERIVATIVE
TRANSACTIONS TO WHICH COMPANY WAS A PARTY PRIOR TO SUCH DATE, IF COMPANY HAS ANY
CONTINGENT LIABILITY THEREUNDER.
THE CLOSING DERIVATIVE LIST SHALL INCLUDE THE
FAIR MARKET VALUE OF EACH OUTSTANDING DERIVATIVE TRANSACTION AS OF SUCH DATE,
WITH A VALUE TO
COMPANY EXPRESSED AS A POSITIVE NUMBER AND A VALUE TO THE COUNTERPARTY THERETO
EXPRESSED AS A NEGATIVE NUMBER.
COMPANY SHALL DETERMINE THE FAIR MARKET VALUE
OF EACH DERIVATIVE TRANSACTION BY OBTAINING QUOTATIONS FROM THE COUNTERPARTY TO
SUCH DERIVATIVE TRANSACTION.
5.5
PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY.
(A)
NONE OF THE COMPANY AND THE SELLERS OR THE PURCHASER SHALL MAKE,
OR PERMIT ANY AGENT OR AFFILIATE TO MAKE, ANY PUBLIC STATEMENTS, INCLUDING ANY
PRESS RELEASES, WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS WITHOUT THE
PRIOR WRITTEN CONSENT OF THE OTHER (WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED), EXCEPT AS MAY BE REQUIRED BY ANY LAW OR ORDER OR PURSUANT
TO ANY LISTING AGREEMENT WITH ANY NATIONAL SECURITIES EXCHANGE OR STOCK MARKET,
IN WHICH CASE THE PARTY REQUIRED TO MAKE THE RELEASE OR ANNOUNCEMENT SHALL ALLOW
THE OTHER PARTY REASONABLE TIME TO COMMENT ON SUCH RELEASE OR