THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (II) ANY
ACTION THAT WOULD OR IS REASONABLY LIKELY TO IMPAIR OR DELAY THE CLOSING,
INCLUDING WITHOUT LIMITATION, ANY ACTION THAT WOULD CAUSE ANY GOVERNMENTAL OR
REGULATORY AUTHORITY TO COMMENCE OR RE-OPEN, AS THE CASE MAY BE, A PROCEEDING OR
INVESTIGATION WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
(III) WITHOUT THE PRIOR WRITTEN CONSENT OF THE SELLERS, ANY ACTION TO SOLICIT
FOR EMPLOYMENT OR EMPLOY (INCLUDING AS AN INDEPENDENT CONTRACTOR OR CONSULTANT)
ANY COMPANY EMPLOYEE WHO IS PARTY TO AN EMPLOYMENT CONTRACT AS SET FORTH ON
SECTION 4.2 OF THE DISCLOSURE SCHEDULE.
ARTICLE V.
ADDITIONAL AGREEMENTS
SECTION 5.1
ACCESS TO INFORMATION.
BETWEEN THE DATE OF THIS
AGREEMENT AND THE EARLIER OF THE CLOSING DATE OR THE TERMINATION OF THIS
AGREEMENT, UPON REASONABLE NOTICE, AND EXCEPT AS DETERMINED IN GOOD FAITH TO BE
APPROPRIATE TO ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS AND SUBJECT TO ANY
APPLICABLE PRIVILEGES (INCLUDING THE ATTORNEY-CLIENT PRIVILEGE) AND CONTRACTUAL
CONFIDENTIALITY OBLIGATIONS, THE SELLERS SHALL (A) GIVE THE ACQUIRER AND ITS
REPRESENTATIVES REASONABLE ACCESS TO ALL BOOKS AND RECORDS OF THE SELLERS
RELATING TO THE BUSINESS OR THE PURCHASED ASSETS, DURING NORMAL BUSINESS HOURS,
WHETHER LOCATED ON THE PREMISES OF THE SELLERS OR AT ANOTHER LOCATION, PROVIDED
THAT THE SELLERS SHALL HAVE THE RIGHT TO HAVE A REPRESENTATIVE PRESENT DURING
ANY SUCH INSPECTION; (B) CAUSE ITS OFFICERS TO FURNISH THE ACQUIRER SUCH
FINANCIAL, OPERATING, TECHNICAL AND PRODUCT DATA AND OTHER INFORMATION WITH
RESPECT TO THE BUSINESS AND PURCHASED ASSETS AS THE ACQUIRER FROM TIME TO TIME
MAY REASONABLY REQUEST, INCLUDING FINANCIAL STATEMENTS AND SCHEDULES, FOR
PURPOSES OF PREPARING TO OPERATE THE BUSINESS FOLLOWING THE CLOSING; PROVIDED,
HOWEVER, THAT NO INVESTIGATION PURSUANT TO THIS SECTION 5.1 SHALL AFFECT OR BE
DEEMED TO MODIFY ANY REPRESENTATION OR WARRANTY MADE BY THE SELLERS HEREIN;
PROVIDED, FURTHER, THAT SUCH INVESTIGATION SHALL NOT UNREASONABLY INTERFERE WITH
ANY OF THE BUSINESSES, PERSONNEL OR
31
OPERATIONS OF THE SELLERS OR ANY OF THEIR AFFILIATES.
MATERIALS FURNISHED TO
THE ACQUIRER PURSUANT TO THIS SECTION 5.1 MAY BE USED BY THE ACQUIRER ONLY FOR
STRATEGIC PLANNING PURPOSES RELATING TO EVALUATING AND ACCOMPLISHING THE
TRANSACTIONS CONTEMPLATED HEREBY AND SHALL BE SUBJECT TO THE CONFIDENTIALITY
AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, PRIOR TO
THE CLOSING, WITHOUT THE PRIOR WRITTEN CONSENT OF THE SELLERS, WHICH SHALL NOT
BE UNREASONABLY WITHHELD, CONDITIONED OR DELAYED, NEITHER THE ACQUIRER NOR ANY
OF ITS REPRESENTATIVES SHALL CONTACT ANY SUPPLIERS TO, OR CUSTOMERS OF THE
SELLERS WITH RESPECT TO THE SELLERS OR THE BUSINESS; PROVIDED, HOWEVER, THAT ANY
SUCH CONTACT WITH SUPPLIERS OR CUSTOMERS OF THE SELLERS MUST BE COORDINATED BY
THE SELLERS AND THE SELLERS SHALL BE ENTITLED TO PARTICIPATE IN ANY SUCH
DISCUSSIONS WITH SUPPLIERS OR CUSTOMERS OF THE SELLERS.
SECTION 5.2
CONFIDENTIALITY.
THE PARTIES ACKNOWLEDGE THAT THE
ACQUIRER AND THE SELLERS HAVE PREVIOUSLY EXECUTED A NON-DISCLOSURE AGREEMENT
DATED JANUARY 22, 2009 (THE "CONFIDENTIALITY AGREEMENT"), WHICH CONFIDENTIALITY
AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS.
SECTION