OR PERFORM OTHER OBLIGATIONS WHEN DUE CONSISTENT
WITH ITS PAST PRACTICES, SUBJECT TO ANY GOOD FAITH DISPUTES OVER SUCH TAXES AND
OTHER OBLIGATIONS AND, TO THE EXTENT CONSISTENT WITH SUCH BUSINESS, TO USE
REASONABLE EFFORTS AND INSTITUTE ALL POLICIES TO PRESERVE INTACT ITS PRESENT
BUSINESS ORGANIZATION, KEEP AVAILABLE THE SERVICES OF ITS PRESENT OFFICERS AND
KEY EMPLOYEES, PRESERVE ITS RELATIONSHIPS WITH CUSTOMERS, SUPPLIERS,
DISTRIBUTORS, LICENSORS, LICENSEES, INDEPENDENT CONTRACTORS AND OTHER PERSONS
HAVING BUSINESS DEALINGS WITH IT AND TO CAUSE ITS SUBSIDIARIES TO DO THE SAME,
ALL WITH THE EXPRESS PURPOSE AND INTENT OF PRESERVING UNIMPAIRED ITS GOODWILL
AND ONGOING BUSINESSES AT THE CLOSING.
5.12
NO SOLICITATION.
UNTIL THE EARLIER OF THE CLOSING OR THE DATE OF
TERMINATION OF THIS AGREEMENT PURSUANT TO THE PROVISIONS OF ARTICLE 8 HEREOF,
NEITHER COMPANY NOR PARENT OR MERGER SUB, NOR ANY OF THEIR RESPECTIVE
SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, INVESTMENT BANKERS OR OTHER
REPRESENTATIVES OF ANY OF THEM (COLLECTIVELY, THE "REPRESENTATIVES") WILL,
DIRECTLY OR INDIRECTLY, (I) SOLICIT, ENGAGE IN DISCUSSIONS OR NEGOTIATE WITH ANY
PERSON (REGARDLESS OF WHO INITIATES SUCH DISCUSSIONS OR NEGOTIATIONS), OR TAKE
ANY OTHER ACTION INTENDED OR DESIGNED TO FACILITATE THE EFFORTS OF ANY PERSON,
OTHER THAN THE PARTIES HERETO, RELATING TO THE POSSIBLE ACQUISITION OF THE
COMPANY, PARENT OR MERGER SUB (WHETHER BY WAY OF PURCHASE OF CAPITAL STOCK,
PURCHASE OF ASSETS OR OTHERWISE) OR ANY SIGNIFICANT PORTION OF ITS CAPITAL STOCK
OR ASSETS BY ANY PERSON OTHER THAN THE PARTIES HERETO (AN "ALTERNATIVE
ACQUISITION"), (II) PROVIDE INFORMATION WITH RESPECT TO THE COMPANY, PARENT OR
MERGER SUB TO ANY PERSON RELATING TO A POSSIBLE ALTERNATIVE ACQUISITION BY ANY
PERSON, (III) ENTER INTO AN AGREEMENT WITH ANY PERSON PROVIDING FOR A POSSIBLE
ALTERNATIVE ACQUISITION, OR (IV) MAKE OR AUTHORIZE ANY STATEMENT, RECOMMENDATION
OR SOLICITATION IN SUPPORT OF ANY POSSIBLE ALTERNATIVE ACQUISITION BY ANY
PERSON.
THE COMPANY, PARENT, OR MERGER SUB, AS THE CASE MAY BE, SHALL CAUSE ITS
REPRESENTATIVES TO IMMEDIATELY CEASE AND CAUSE
27
TO BE TERMINATED ALL EXISTING DISCUSSIONS OR NEGOTIATIONS WITH ANY PERSON
HERETOFORE CONDUCTED WITH RESPECT TO ANY POSSIBLE ALTERNATIVE ACQUISITION.
5.13
CONFIDENTIALITY.
PARENT, MERGER SUB AND THE COMPANY ACKNOWLEDGE
AND AGREE THAT THE TERMS AND CONDITIONS DESCRIBED IN THIS AGREEMENT, INCLUDING
ITS EXISTENCE, AS WELL AS THE NON-PUBLIC INFORMATION AND DATA FURNISHED TO THEM
OR THEIR RESPECTIVE REPRESENTATIVES FROM THE FIRST INTRODUCTION OF THE PARTIES
AND THROUGHOUT THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT IS CONFIDENTIAL
AND WILL NOT BE DISCLOSED TO ANY THIRD PARTY, OR USED FOR ANY PURPOSE NOT
SPECIFICALLY CONTEMPLATED HEREIN, WITHOUT PRIOR WRITTEN CONSENT OF THE OTHER
PARTY, UNLESS OTHERWISE REQUIRED BY LAW OR UNLESS IT CEASES TO BE CONFIDENTIAL
THROUGH NO BREACH OF THE RECEIVING PARTY.
5.14
CLOSING BALANCE SHEET. FOR THE PURPOSES OF THE REQUIREMENTS OF
INTERNAL REVENUE SERVICE REVENUE RULING 59-60 AND THE ACCOUNTING REQUIREMENTS
PURSUANT TO THE ACCOUNTING FOR BUSINESS COMBINATIONS, THE COMPANY SHALL DELIVER
WITHIN TEN (10) DAYS OF THE CLOSING A BALANCE SHEET OF THE COMPANY AS OF THE
CLOSING DATE (THE "CLOSING DATE BALANCE SHEET")