OF THE CLOSING DATE (THE
"CLOSING DATE BALANCE SHEET"), ACCOMPANIED BY A CERTIFICATE OF THE PRESIDENT OF
SIRIUS TO THE EFFECT THAT SUCH STATEMENT, EXCEPT AS SET FORTH ON SCHEDULE 6.11,
HAS BEEN PREPARED IN ACCORDANCE WITH GAAP.
WITHIN SIXTY DAYS FOLLOWING THE
DELIVERY OF THE CLOSING DATE BALANCE SHEET, BUYER SHALL NOTIFY THE SELLER
PARTIES IF BUYER DISAGREES WITH THE CLOSING DATE BALANCE SHEET.
IF BUYER DOES
NOT SO NOTIFY THE
41
Seller Parties, Buyer shall be deemed to have accepted such determination.
If
Buyer does so notify the Seller Parties that Buyer disagrees with such
determination, and the Seller Parties and Buyer are thereafter unable to agree
within ten days upon the Closing Date Balance Sheet, then the Closing Date
Balance Sheet shall be determined by an independent accounting firm selected by
the Seller Parties from a list of three nationally recognized independent
accounting firms provided by Buyer.
The determination by such accounting firm
shall be final and binding on Buyer and the Seller Parties, and the fees and
expenses of such accounting firm shall be borne equally by the Seller Parties,
on the one hand, and Buyer, on the other hand.
SECTION 6.12
EMPLOYEES.
(A)
FOR A PERIOD OF THREE YEARS AFTER THE CLOSING, NONE OF THE SELLER
PARTIES OR THEIR AFFILIATES SHALL, DIRECTLY OR INDIRECTLY, EITHER FOR ITSELF OR
ANY OTHER PERSON, (I) INDUCE OR ATTEMPT TO INDUCE ANY EMPLOYEE OF BUYER OR ITS
AFFILIATES TO LEAVE THE EMPLOY OF BUYER OR ITS AFFILIATES, (II) IN ANY WAY
INTERFERE WITH THE RELATIONSHIP BETWEEN BUYER OR ITS AFFILIATES AND ANY OF THEIR
RESPECTIVE EMPLOYEES (PROVIDED THAT NO PARTY SHALL BE DEEMED TO BE INTERFERING
WITH SUCH RELATIONSHIP IF IT HIRES A FORMER EMPLOYEE OF THE OTHER PARTY WHO HAS
BEEN TERMINATED BY THE OTHER PARTY OR HAS RESIGNED FROM THE EMPLOYMENT OF SUCH
OTHER PARTY AND THE PROVISIONS OF CLAUSE (I) HEREOF HAVE NOT BEEN VIOLATED BY
THE SELLER PARTIES OR THEIR AFFILIATES), OR (III) EMPLOY, OR OTHERWISE ENGAGE AS
AN EMPLOYEE, INDEPENDENT CONTRACTOR OR OTHERWISE, ANY EMPLOYEE OF BUYER OR ITS
AFFILIATES, IN EACH CASE EXCEPT FOR EMPLOYEES SET FORTH ON SCHEDULE 6.12(A).
FOR PURPOSES OF THIS SECTION 6.12, EMPLOYEES OF SIRIUS IMMEDIATELY PRIOR TO THE
CLOSING SHALL BE DEEMED TO BE EMPLOYEES OF BUYER AND ITS AFFILIATES AND NOT
EMPLOYEES OF THE SELLER PARTIES AND THEIR AFFILIATES.
(B)
PRIOR TO THE CLOSING DATE, SIRIUS SHALL TERMINATE PARTICIPATION IN
EACH OF THE PLANS AND AGREEMENTS SET FORTH ON SCHEDULE 4.20 TO THE EXTENT
REQUESTED BY BUYER (THE "TERMINATED PLANS"), AND SIRIUS AND THE SELLER PARTIES
SHALL TAKE ALL ACTIONS REASONABLY NECESSARY TO ENSURE THAT ALL LIABILITIES
ARISING UNDER THE TERMINATED PLANS ARE EITHER SATISFIED PRIOR TO THE CLOSING OR
ASSUMED BY THE SELLER PARTIES OR ANOTHER AFFILIATE OF THE SELLER PARTIES.
(C)
AT OR PRIOR TO CLOSING, SIRIUS MAY, AT ITS OPTION, PAY TO ITS
EMPLOYEES ONE-TIME BONUSES OR OTHER COMPENSATION IN AN AMOUNT NOT TO EXCEED
$1,000,000 IN THE AGGREGATE INCLUDING ALL EMPLOYMENT AND