CONCERNING ANY MERGER,
REORGANIZATION, CONSOLIDATION, RECAPITALIZATION, BUSINESS COMBINATION,
LIQUIDATION, DISSOLUTION, SHARE EXCHANGE, SALE OF STOCK, SALE OF THE ACQUIRED
BUSINESS, (II) EXCEPT AS REQUIRED BY LAW, FURNISH ANY NON-PUBLIC INFORMATION
CONCERNING THE ACQUIRED BUSINESS TO ANY PARTY (OTHER THAN THE BUYER) OR
(III) ENGAGE IN DISCUSSIONS OR NEGOTIATIONS WITH ANY PARTY (OTHER THAN THE
BUYER) CONCERNING ANY TRANSACTION INVOLVING THE ACQUIRED BUSINESS, THE ACQUIRED
ASSETS OR THE ASSUMED LIABILITIES.
(B)
THE SELLERS SHALL IMMEDIATELY NOTIFY ANY PARTY WITH WHICH
DISCUSSIONS OR NEGOTIATIONS OF THE NATURE DESCRIBED IN PARAGRAPH (A) ABOVE WERE
PENDING THAT THE SELLERS IS TERMINATING SUCH DISCUSSIONS OR NEGOTIATIONS.
IF
THE SELLERS RECEIVE ANY INQUIRY, PROPOSAL OR OFFER OF THE NATURE DESCRIBED IN
PARAGRAPH (A) ABOVE, THE SELLERS SHALL, WITHIN ONE BUSINESS DAY AFTER SUCH
RECEIPT, NOTIFY THE BUYER OF SUCH INQUIRY, PROPOSAL OR OFFER, INCLUDING THE
IDENTITY OF THE OTHER PARTY AND THE TERMS OF SUCH INQUIRY, PROPOSAL OR OFFER.
4.9
DELIVERY OF INFORMATION.
THE SELLERS SHALL USE THEIR REASONABLE
BEST EFFORTS TO PREPARE AND DELIVER TO BUYER OR ITS DESIGNATED AGENT ALL DUE
DILIGENCE INFORMATION REASONABLY REQUESTED BY THE BUYER ON A TIMELY BASIS, BUT
IN ANY EVENT NOT LATER THAN 15 BUSINESS DAYS PRIOR TO THE CLOSING DATE AND TO
PREPARE AND DELIVER TO THE BUYER THE FINAL DISCLOSURE SCHEDULE NO LATER THAN 4
BUSINESS DAYS PRIOR TO THE CLOSING DATE.
BUYER AGREES TO USE REASONABLE BEST
EFFORTS TO ENSURE THAT ALL DUE DILIGENCE REQUESTS ARE REASONABLE CONSIDERING THE
SCOPE OF THIS TRANSACTION.
4.10
EMPLOYEES.
PROVIDED THAT BUYER FIRST OBTAINS THE APPROVAL OF
SELLER'S PLANT MANAGER OR HUMAN RESOURCES MANAGER, THE BUYER SHALL BE PERMITTED
TO CONTACT BUSINESS EMPLOYEES TO ADVISE ANY BUSINESS EMPLOYEE OF ITS INTENT TO
MAKE AN OFFER TO HIM OR HER.
15
4.11
SOLICITATION AND HIRING.
PRIOR TO THE CLOSING DATE, NEITHER PARTY
SHALL (I) EITHER DIRECTLY OR INDIRECTLY (INCLUDING THROUGH AN AFFILIATE),
SOLICIT OR ATTEMPT TO INDUCE ANY BUSINESS EMPLOYEE TO TERMINATE HIS OR HER
EMPLOYMENT WITH THE SELLERS OR (II) THROUGH AN AFFILIATE HIRE OR ATTEMPT TO HIRE
ANY BUSINESS EMPLOYEE OR TRANSFER OR INDUCE TO TRANSFER THE EMPLOYMENT OF ANY
BUSINESS EMPLOYEE TO AN AFFILIATE, IN EACH CASE WITHOUT THE OTHER PARTY'S PRIOR
WRITTEN CONSENT; PROVIDED, HOWEVER, THAT NOTHING SHALL PREVENT A PARTY FROM
ADVERTISING FOR OPEN POSITIONS IN FORUMS OF GENERAL CIRCULATION OR HIRING AN
BUSINESS EMPLOYEE WHO RESPONDS TO THAT ADVERTISEMENT.
ARTICLE V
CONDITIONS TO CLOSING
5.1
CONDITIONS TO OBLIGATIONS OF EACH PARTY.
THE RESPECTIVE
OBLIGATIONS OF EACH PARTY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT TO BE CONSUMMATED AT THE CLOSING ARE SUBJECT TO THE SATISFACTION OF
THE FOLLOWING CONDITIONS THAT SHALL BE MET ON THE CLOSING DATE (UNLESS WAIVED IN
WRITING BY THE PARTIES):
(A)
THE EXECUTION OF THE AGREEMENT BY SELLERS SHALL HAVE RECEIVED ALL
THE NECESSARY CORPORATE APPROVALS;
(B)
THE EXECUTION OF THE AGREEMENT BY BUYER SHALL HAVE BEEN APPROVED
BY THE BOARD OF DIRECTORS OF THE BUYER; AND
(C)
THE PARTIES' DISPUTE REGARDING THE INVENTORY FOR WHICH SELLERS
ACCEPTS