ON OR BEFORE THE CLOSING DATE.
THE COMPANY
SHALL PROVIDE PARENT WITH A COPY OF APPROPRIATE WORK PAPERS, SCHEDULES, DRAFTS
AND FINAL COPIES OF EACH FOREIGN AND DOMESTIC, FEDERAL, PROVINCIAL AND STATE
INCOME TAX RETURN OR ELECTION OF THE COMPANY (INCLUDING RETURNS OF ALL EMPLOYEE
BENEFIT PLANS) AT LEAST TEN DAYS BEFORE FILING SUCH RETURN OR ELECTION AND SHALL
CONSULT WITH PARENT WITH RESPECT THERETO PRIOR TO SUCH FILING.
5.15.
TAX-FREE REORGANIZATION.
PARENT AND THE COMPANY SHALL
EACH USE ALL COMMERCIALLY REASONABLE BEST EFFORTS TO CAUSE THE MERGER TO QUALIFY
AS A REORGANIZATION WITHIN THE MEANING OF SECTION 368(A) OF THE CODE.
NEITHER
PARENT NOR THE COMPANY SHALL TAKE OR FAIL TO TAKE, OR CAUSE ANY THIRD PARTY TO
TAKE OR FAIL TO TAKE, ANY ACTION THAT WOULD CAUSE THE MERGER TO FAIL TO QUALIFY
AS A "REORGANIZATION" WITHIN THE MEANING OF SECTION 368(A) OF THE CODE.
5.16.
SEC FILINGS; COMPLIANCE.
THE COMPANY AND PARENT SHALL
EACH CAUSE THE FORMS, REPORTS, SCHEDULES, STATEMENTS AND OTHER DOCUMENTS
REQUIRED TO BE FILED WITH THE SEC BY THE COMPANY AND PARENT, RESPECTIVELY,
BETWEEN THE DATE OF THIS AGREEMENT AND THE EFFECTIVE TIME (WITH RESPECT TO
EITHER THE COMPANY OR PARENT, THE "NEW SEC REPORTS") TO BE PREPARED IN ALL
MATERIAL RESPECTS WITH ALL APPLICABLE REQUIREMENTS OF THE SECURITIES ACT AND THE
EXCHANGE ACT, AS THE CASE MAY BE, AND SUCH NEW SEC REPORTS WILL NOT AT THE TIME
THEY ARE FILED CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE
ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE
THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY ARE MADE,
NOT MISLEADING.
5.17.
LISTING OF ADDITIONAL SHARES.
PRIOR TO THE EFFECTIVE
TIME, PARENT SHALL FILE WITH THE NASDAQ NATIONAL MARKET A NOTIFICATION
FORM 10B-17 FOR LISTING ADDITIONAL SHARES WITH RESPECT TO THE SHARES OF PARENT
COMMON STOCK TO BE ISSUED IN THE MERGER.
5.18.
ENVIRONMENTAL INVESTIGATION. THE PARENT SHALL ARRANGE
FOR AND DIRECT ENVIRONMENTAL INVESTIGATIONS OF SOIL AND GROUNDWATER, WITH THE
ASSISTANCE AND COOPERATION OF COMPANY, IN, UNDER
34
OR ABOUT PROPERTIES OPERATED, NOW OR PREVIOUSLY, BY COMPANY OR ITS
SUBSIDIARIES.
COMPANY SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE
PARENT ADEQUATE ACCESS TO ANY AND ALL SUCH PROPERTIES.
COMPANY SHALL PROVIDE
PARENT DOCUMENTATION OF ANY AND ALL INSURANCE POLICIES, INDEMNITIES, JUDGMENTS,
ORDERS OR AGREEMENTS RESPECTING LIABILITY UNDER ANY ENVIRONMENTAL LAWS.
5.19.
Delivery of Ancillary Documents.
The Company shall
use its commercially reasonable best efforts to deliver the Employment
Agreements, Lock-up Agreements and the Voting Agreements, fully-executed by the
parties thereto other than the Parent, within ten (10) business days following
the execution of this agreement.
ARTICLE VI
CONDITIONS TO CLOSING
6.1.
CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT
THE MERGER.
THE RESPECTIVE OBLIGATION OF EACH PARTY TO EFFECT THE MERGER IS
SUBJECT TO THE SATISFACTION OR WAIVER ON OR PRIOR TO THE EFFECTIVE DATE OF THE
FOLLOWING CONDITIONS:
(A)
COMPANY STOCKHOLDER APPROVAL.
THIS
AGREEMENT AND THE MERGER SHALL HAVE BEEN APPROVED AND