THE DATE OF THIS AGREEMENT AND AS OF
THE CLOSING DATE AS THOUGH MADE ON AND AS OF THE CLOSING DATE (OTHER THAN SUCH
REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY MADE AS OF AN EARLIER DATE
WHICH NEED ONLY BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS OR TRUE AND
CORRECT, AS THE CASE MAY BE, AS OF SUCH EARLIER DATE, AND EXCEPT AS BUYER MAY
OTHERWISE HAVE CONSENTED IN WRITING), AND BUYER SHALL HAVE RECEIVED A
CERTIFICATE, DATED AS OF THE CLOSING DATE, SIGNED BY AN AUTHORIZED OFFICER OF
SELLER CERTIFYING TO THAT EFFECT.
(B)
COVENANTS.
SELLER SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS
ALL OBLIGATIONS REQUIRED TO BE PERFORMED BY SELLER UNDER THIS AGREEMENT
(INCLUDING WITHOUT LIMITATION UNDER SECTIONS 2.3 AND 8.5) AND ANY APPLICABLE
ANCILLARY AGREEMENT AT OR PRIOR TO THE CLOSING DATE, AND BUYER SHALL HAVE
RECEIVED A CERTIFICATE, DATED AS OF THE CLOSING DATE, SIGNED BY AN AUTHORIZED
OFFICER OF SELLER TO THAT EFFECT.
(C)
LITIGATION.
(I)
GOVERNMENTAL PROHIBITION.
NO GOVERNMENTAL ENTITY OF COMPETENT
JURISDICTION SHALL HAVE ENACTED, ISSUED, PROMULGATED, ENFORCED OR ENTERED A
LEGAL REQUIREMENT (WHETHER TEMPORARY, PRELIMINARY OR PERMANENT) THAT IS IN
EFFECT AT THE TIME
47
OF CLOSING, WHICH RESTRAINS, ENJOINS OR OTHERWISE PROHIBITS THE CONSUMMATION OF
THE SALE OF THE PURCHASED ASSETS (EACH, A "GOVERNMENTAL PROHIBITION").
(II)
OTHER LITIGATION.
(I) NO GOVERNMENTAL ENTITY SHALL HAVE
INSTITUTED ANY ACTION, LITIGATION OR SUIT THAT SEEKS A GOVERNMENTAL PROHIBITION
(A "GOVERNMENTAL CHALLENGE") OR HAVE MADE A MATERIAL ADVERSE GOVERNMENTAL
DETERMINATION, AND (II) NO OTHER PERSON SHALL HAVE INSTITUTED ANY ACTION,
LITIGATION OR SUIT (WHETHER CIVIL, CRIMINAL OR ADMINISTRATIVE) BEFORE ANY
GOVERNMENTAL ENTITY (X) WHICH SEEKS TO PROHIBIT THE CONSUMMATION OF, OR
CHALLENGES THE VALIDITY OR LEGALITY OF, THE SALE OF THE PURCHASED ASSETS AND (Y)
WHICH BUYER HAS DETERMINED IN GOOD FAITH, BASED UPON THE ADVICE OF COUNSEL, HAS
A REASONABLE BASIS FOR SUCCESS.
(D)
ANTITRUST APPROVALS; CONSENTS; GOVERNMENT APPROVALS.
(I)
THE ANTITRUST APPROVALS SHALL HAVE BEEN MADE, OR APPLICABLE
MANDATORY WAITING PERIODS SHALL HAVE EXPIRED, AS THE CASE MAY BE.
(II)
ALL MATERIAL CONSENTS LISTED IN SCHEDULE 3.2(C) SHALL HAVE BEEN
OBTAINED AND ALL SHARED CONTRACTS SHALL HAVE BEEN APPORTIONED PURSUANT TO
SECTION 5.3(C).
(E)
REQUIRED BUYER STOCKHOLDER APPROVAL.
THE REQUIRED BUYER
STOCKHOLDER APPROVAL SHALL HAVE BEEN OBTAINED.
(F)
BUYER FAIRNESS OPINION.
THE BUYER BOARD SHALL HAVE RECEIVED THE
BUYER FAIRNESS OPINION, AND SUCH BUYER FAIRNESS OPINION SHALL NOT HAVE BEEN
RESCINDED, WITHDRAWN OR ADVERSELY MODIFIED BY THE FINANCIAL ADVISOR(S) PROVIDING
SUCH BUYER FAIRNESS OPINION (OTHER THAN ANY RESCISSION, WITHDRAWAL OR
MODIFICATION RESULTING OR ARISING, DIRECTLY OR INDIRECTLY, FROM (I) ANY
INTENTIONAL FAILURE BY BUYER TO PROVIDE TO SUCH FINANCIAL ADVISOR(S) ANY
MATERIAL, WRITTEN INFORMATION RECEIVED FROM SELLER, OR (II) WILLFUL
MISREPRESENTATION ON THE PART OF BUYER OR ANY OF ITS REPRESENTATIVES IN
CONNECTION WITH THE PREPARATION AND ISSUANCE OF SUCH BUYER FAIRNESS OPINION).
(G)
ANCILLARY AGREEMENTS.
SELLER SHALL HAVE ENTERED INTO AND
DELIVERED TO BUYER EACH ANCILLARY AGREEMENT TO WHICH IT IS A PARTY.
(H)
KEY EXECUTIVE AGREEMENTS.
NO KEY EXECUTIVE