OR ADVISABLE TO CONSUMMATE AND MAKE EFFECTIVE, IN
THE MOST EXPEDITIOUS MANNER PRACTICABLE, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, INCLUDING USING COMMERCIALLY REASONABLE EFFORTS
TO ACCOMPLISH THE FOLLOWING:
(I) THE TAKING OF ALL REASONABLE ACTS NECESSARY TO
CAUSE THE CONDITIONS PRECEDENT SET FORTH IN ARTICLE VI TO BE SATISFIED, (II) THE
OBTAINING OF ALL NECESSARY ACTIONS, WAIVERS, CONSENTS, APPROVALS, ORDERS AND
AUTHORIZATIONS FROM GOVERNMENTAL ENTITIES AND THE MAKING OF ALL NECESSARY
REGISTRATIONS, DECLARATIONS AND FILINGS (INCLUDING REGISTRATIONS, DECLARATIONS
AND FILINGS WITH GOVERNMENTAL ENTITIES, IF ANY) AND THE TAKING OF ALL REASONABLE
STEPS AS MAY BE NECESSARY TO AVOID ANY SUIT, CLAIM, ACTION, INVESTIGATION OR
PROCEEDING BY ANY GOVERNMENTAL ENTITY, (III) THE
41
OBTAINING OF ALL CONSENTS, APPROVALS OR WAIVERS FROM THIRD PARTIES REQUIRED AS A
RESULT OF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION THE CONSENTS REFERRED TO IN THE COMPANY SCHEDULE, (IV) THE DEFENDING
OF ANY SUITS, CLAIMS, ACTIONS, INVESTIGATIONS OR PROCEEDINGS, WHETHER JUDICIAL
OR ADMINISTRATIVE, CHALLENGING THIS AGREEMENT OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING SEEKING TO HAVE ANY STAY OR
TEMPORARY RESTRAINING ORDER ENTERED BY ANY COURT OR OTHER GOVERNMENTAL ENTITY
VACATED OR REVERSED AND (V) THE EXECUTION OR DELIVERY OF ANY ADDITIONAL
INSTRUMENTS REASONABLY NECESSARY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY,
AND TO FULLY CARRY OUT THE PURPOSES OF, THIS AGREEMENT.
IN CONNECTION WITH AND
WITHOUT LIMITING THE FOREGOING, PARENT AND ITS BOARD OF DIRECTORS AND THE
COMPANY AND ITS BOARD OF DIRECTORS SHALL, IF ANY STATE TAKEOVER STATUTE OR
SIMILAR STATUTE OR REGULATION IS OR BECOMES APPLICABLE TO THE MERGER, THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, USE ITS
COMMERCIALLY REASONABLE EFFORTS TO ENABLE THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT TO BE CONSUMMATED AS PROMPTLY AS PRACTICABLE ON
THE TERMS CONTEMPLATED BY THIS AGREEMENT.
NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY, NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO REQUIRE PARENT OR THE
COMPANY TO AGREE TO ANY DIVESTITURE BY ITSELF OR ANY OF ITS AFFILIATES OF SHARES
OF CAPITAL STOCK OR OF ANY BUSINESS, ASSETS OR PROPERTY, OR THE IMPOSITION OF
ANY MATERIAL LIMITATION ON THE ABILITY OF ANY OF THEM TO CONDUCT THEIR BUSINESS
OR TO OWN OR EXERCISE CONTROL OF SUCH ASSETS, PROPERTIES AND STOCK.
5.12
CERTAIN CLAIMS.
AS ADDITIONAL CONSIDERATION FOR THE ISSUANCE OF
THE PER SHARE MERGER CONSIDERATION PURSUANT TO THIS AGREEMENT, EACH OF THE
COMPANY STOCKHOLDERS HEREBY RELEASES AND FOREVER DISCHARGES, EFFECTIVE AS OF THE
CLOSING DATE, THE COMPANY AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS,
FROM ANY AND ALL RIGHTS, CLAIMS, DEMANDS, JUDGMENTS, OBLIGATIONS, LIABILITIES
AND DAMAGES, WHETHER ACCRUED OR UNACCRUED, ASSERTED OR UNASSERTED, AND WHETHER
KNOWN OR UNKNOWN ARISING OUT OF OR RESULTING FROM SUCH STOCKHOLDER'S (I) STATUS
AS A HOLDER OF AN EQUITY INTEREST IN THE COMPANY; AND (II) EMPLOYMENT, SERVICE,
CONSULTING OR OTHER SIMILAR AGREEMENT ENTERED INTO WITH THE COMPANY PRIOR TO
CLOSING, TO THE EXTENT THAT THE BASES FOR CLAIMS UNDER ANY SUCH AGREEMENT THAT
SURVIVES THE CLOSING