HAS
BEEN ENGAGED IN THE BUSINESS.
(D)
DURING THE RESTRICTED PERIOD, SELLER AGREES THAT SELLER WILL NOT,
DIRECTLY OR INDIRECTLY (I) SOLICIT, INDUCE OR ATTEMPT TO INDUCE ANY CUSTOMER TO
CEASE DOING BUSINESS IN WHOLE OR IN PART WITH PURCHASER OR ITS AFFILIATES WITH
RESPECT TO THE BUSINESS; (II) ATTEMPT TO LIMIT OR INTERFERE WITH ANY BUSINESS
AGREEMENT EXISTING BETWEEN THE PURCHASER AND/OR ITS AFFILIATES AND ANY THIRD
PARTY; OR (III) DISPARAGE THE BUSINESS REPUTATION OR EMPLOYEES OF PURCHASER, OR
ANY OF ITS AFFILIATES, OR TAKE ANY ACTIONS, KNOWINGLY, WILLFULLY OR, RECKLESSLY,
THAT ARE HARMFUL TO THE PURCHASER'S OR ITS AFFILIATES' GOODWILL WITH THEIR
CUSTOMERS, CLIENTS, PUBLISHERS, ADVERTISERS, MARKETERS, VENDORS, EMPLOYEES,
SERVICE PROVIDERS, MEDIA OR THE PUBLIC.
Section 4.10
Notice of Breaches.
From the date of this Agreement until
(i) the Technology Closing date with respect to all Transferred Assets and
(ii) the Manufacturing Closing with respect to the Manufacturing Assets, the
Seller shall promptly deliver to the Purchaser a written notice containing
supplemental information concerning events or circumstances first occurring
subsequent to the date hereof which would render any
31
representation, warranty or statement in this Agreement inaccurate or
incomplete, or any covenant breached, as of any date after the date of this
Agreement, specifying the applicable section of this Agreement to which such
supplemental information applies (including any changes pursuant to subsection
(b) of this Section, the "Notice of Breach").
Following the delivery of any
such Notice of Breach, Seller shall promptly deliver to Purchaser all additional
information reasonably requested by Purchaser with respect to the content of
such Notice of Breach.
No delivery of any Notice of Breach pursuant to this
Section 4.10 or knowledge of any such breach (however obtained) shall be deemed
to amend or supplement any schedule to this Agreement or affect the rights and
remedies of Purchaser under Article VIII of this Agreement.
Section 4.11
Certain Employee Matters.
(A)
AS SOON AS REASONABLY PRACTICABLE FOLLOWING THE DATE HEREOF,
SELLER SHALL PROVIDE PURCHASER REASONABLE ACCESS DURING NORMAL WORKING HOURS TO
ACTIVE EMPLOYEES OF SELLER PERFORMING SERVICES WITH RESPECT TO THE BUSINESS
("SELLER EMPLOYEES") TO ENABLE PURCHASER TO DISCUSS COMPENSATION TERMS AND
PRESENT OFFERS OR EMPLOYMENT OR SERVICE TO SUCH EMPLOYEES.
(B)
PURCHASER MAY, IN ITS SOLE DISCRETION, OFFER EMPLOYMENT TO SELLER
EMPLOYEES COMMENCING AS OF THE MANUFACTURING CLOSING (EACH SELLER EMPLOYEE WHO
EXECUTES AND DELIVERS TO THE PURCHASER SUCH AN OFFER OF EMPLOYMENT, A
"TRANSFERRED EMPLOYEE").
WITH RESPECT TO ANY SELLER EMPLOYEE WHO RECEIVES AN
OFFER OF EMPLOYMENT FROM PURCHASER PRIOR TO THE MANUFACTURING CLOSING DATE,
SELLER SHALL ASSIST PURCHASER WITH ITS EFFORTS TO ENTER INTO AN OFFER LETTER
WITH SUCH EMPLOYEE AS SOON AS REASONABLY PRACTICABLE AFTER THE DATE HEREOF AND
IN ANY EVENT PRIOR TO THE MANUFACTURING CLOSING DATE.
NOTWITHSTANDING ANY OF
THE FOREGOING, PURCHASER SHALL NOT HAVE ANY OBLIGATION TO MAKE AN OFFER OF
EMPLOYMENT TO ANY SELLER EMPLOYEE.
PURCHASER AGREES THAT PURCHASER WILL NOT,
DIRECTLY OR INDIRECTLY, SOLICIT, ENCOURAGE OR ATTEMPT TO SOLICIT OR ENCOURAGE TO
CEASE TO WORK