|
as a foreign corporation in good standing in each jurisdiction in which the nature of its business or the
<br /> character or the location of its properties owned or leased by it makes such qualification necessary.
<br /> SECTION 4.03. No Conflicts; Consents. The execution, delivery, and performance of this
<br /> Agreement and the Related Instruments and the consummation of the Transactions do not,and will not,(a)
<br /> violate any provision of Buyer's charter or Bylaws,as amended,or equivalent organizational and governing
<br /> documents, as applicable, or any other document governing Buyer's existence, governance, or operations,
<br /> or(b)conflict with or result in a breach of,create an event of default under,or give any third party the right
<br /> to accelerate any obligation under, any agreement,mortgage,order,arbitration award,judgment, or decree
<br /> to which Buyer is a party that could materially and adversely affect Buyer's ability to perform its obligations
<br /> hereunder,or by which Buyer is bound or potentially subject, whether with or without the giving of notice,
<br /> the passage of time,or both. There is no pending or,to Buyer's knowledge,threatened Proceeding before,
<br /> or by, any Governmental Authority to restrain or prevent the Transactions or that could materially and
<br /> adversely affect Buyer's ability to perform its obligations hereunder. Buyer has obtained all consents and
<br /> approvals necessary for or that arise as a result of or in connection with the consummation of the
<br /> Transactions.
<br /> SECTION 4.04. Statements True, Correct, and Complete. The statements made by Buyer in
<br /> this Agreement, are true, correct, and complete in all material respects and do not omit any fact necessary
<br /> to make such responses or statements not misleading.
<br /> SECTION 4.05. Brokers. No broker, finder, or investment banker is entitled to any brokerage,
<br /> finder's, or other fee or commission in connection with the Transactions based upon arrangements made
<br /> by or on behalf of Buyer.
<br /> ARTICLE V
<br /> ADDITIONAL AGREEMENTS
<br /> SECTION 5.01. Confidentiality. Sellers, Gabe Wallace and Eric Clark(collectively, the "Non-
<br /> Compete Parties" and each, a "Non-Compete Party") shall, and shall cause such Non-Compete Parry's
<br /> directors, members, managers, officers, employees, agents, brokers, advisors (including attorneys,
<br /> accountants, lenders, consultants, and any representatives of such advisors), representatives, investment
<br /> and commercial bankers, and affiliates (collectively, "Representatives"), to keep confidential all, and not
<br /> use or divulge to any Person(other than Buyer and its Representatives)any of(a)the trade secrets or private
<br /> or confidential information relating to the Assets, the Business, or Buyer's operation of the Assets,
<br /> including private, secret, and confidential information relating to such matters as the finances, methods of
<br /> operation and competition, marketing plans and strategies, equipment and operational requirements and
<br /> information concerning personnel,customers,and suppliers of Sellers or Buyer,generally, or(b)except as
<br /> reasonably necessary to perform such Non-Compete Party's obligations or enforce such Non-Compete
<br /> Party's rights hereunder, the terms of the Transactions, including the disclosure of this Agreement or any
<br /> other agreement between the parties relating to the Transactions, unless such information(i)is or becomes
<br /> generally available to the public other than as a result of a disclosure by any Non-Compete Party or any
<br /> Non-Compete Party's Representatives,(ii)is legally compelled to be disclosed whether by Law or order of
<br /> a Governmental Authority;provided, however that Non-Compete Parties shall provide Buyer with prompt
<br /> written notice of such legal compulsion so that Buyer may seek a protective order or other available remedy.
<br /> If a protective order or other remedy is not obtained and Non-Compete Parties do not obtain from Buyer a
<br /> waiver of compliance with this section, Non-Compete Parties nevertheless may disclose such information
<br /> that knowledgeable counsel advises Non-Compete Parties in writing must be disclosed lest Non-Compete
<br /> Parties stand liable for contempt or other material censure or penalty. Each Non-Compete Party will use
<br /> its best efforts to obtain reliable assurance that information so disclosed will be treated confidentially by
<br /> 20
<br />
|