CLOSING DATE BALANCE SHEET SHALL BE
DETERMINED BY AN INDEPENDENT ACCOUNTING FIRM SELECTED BY THE SELLER PARTIES FROM
A LIST OF THREE NATIONALLY RECOGNIZED INDEPENDENT ACCOUNTING FIRMS PROVIDED BY
BUYER.
THE DETERMINATION BY SUCH ACCOUNTING FIRM SHALL BE FINAL AND BINDING ON
BUYER AND THE SELLER PARTIES, AND THE FEES AND EXPENSES OF SUCH ACCOUNTING FIRM
SHALL BE BORNE EQUALLY BY THE SELLER PARTIES, ON THE ONE HAND, AND BUYER, ON THE
OTHER HAND.
SECTION 6.12
EMPLOYEES.
(A)
FOR A PERIOD OF THREE YEARS AFTER THE CLOSING, NONE OF THE SELLER
PARTIES OR THEIR AFFILIATES SHALL, DIRECTLY OR INDIRECTLY, EITHER FOR ITSELF OR
ANY OTHER PERSON, (I) INDUCE OR ATTEMPT TO INDUCE ANY EMPLOYEE OF BUYER OR ITS
AFFILIATES TO LEAVE THE EMPLOY OF BUYER OR ITS AFFILIATES, (II) IN ANY WAY
INTERFERE WITH THE RELATIONSHIP BETWEEN BUYER OR ITS AFFILIATES AND ANY OF THEIR
RESPECTIVE EMPLOYEES (PROVIDED THAT NO PARTY SHALL BE DEEMED TO BE INTERFERING
WITH SUCH RELATIONSHIP IF IT HIRES A FORMER EMPLOYEE OF THE OTHER PARTY WHO HAS
BEEN TERMINATED BY THE OTHER PARTY OR HAS RESIGNED FROM THE EMPLOYMENT OF SUCH
OTHER PARTY AND THE PROVISIONS OF CLAUSE (I) HEREOF HAVE NOT BEEN VIOLATED BY
THE SELLER PARTIES OR THEIR AFFILIATES), OR (III) EMPLOY, OR OTHERWISE ENGAGE AS
AN EMPLOYEE, INDEPENDENT CONTRACTOR OR OTHERWISE, ANY EMPLOYEE OF BUYER OR ITS
AFFILIATES, IN EACH CASE EXCEPT FOR EMPLOYEES SET FORTH ON SCHEDULE 6.12(A).
FOR PURPOSES OF THIS SECTION 6.12, EMPLOYEES OF ANY OF THE SUBJECT COMPANIES
IMMEDIATELY PRIOR TO THE CLOSING SHALL BE DEEMED TO BE EMPLOYEES OF BUYER AND
ITS AFFILIATES AND NOT EMPLOYEES OF THE SELLER PARTIES AND THEIR AFFILIATES.
(B)
PRIOR TO THE CLOSING DATE, THE SUBJECT COMPANIES SHALL TERMINATE
PARTICIPATION IN EACH OF THE PLANS AND AGREEMENTS SET FORTH ON SCHEDULE 4.20 TO
THE EXTENT REQUESTED BY BUYER (THE "TERMINATED PLANS"), AND THE SUBJECT
COMPANIES AND THE SELLER PARTIES SHALL TAKE ALL ACTIONS REASONABLY NECESSARY TO
ENSURE THAT ALL LIABILITIES ARISING UNDER THE
41
TERMINATED PLANS ARE EITHER SATISFIED PRIOR TO THE CLOSING OR ASSUMED BY THE
SELLER PARTIES OR ANOTHER AFFILIATE OF THE SELLER PARTIES.
(C)
AT OR PRIOR TO CLOSING, ANY OF THE SUBJECT COMPANIES MAY, AT ITS
OPTION, PAY TO ITS EMPLOYEES ONE-TIME BONUSES OR OTHER COMPENSATION.
AT
CLOSING, THE AGGREGATE AMOUNT OF SUCH BONUSES OR OTHER COMPENSATION AND
EMPLOYMENT AND OTHER TAXES IN CONNECTION THEREWITH SHALL BE PAID BY BUYER TO
SMITH MARITIME AS A CAPITAL CONTRIBUTION, AND THE MERGER CONSIDERATION SHALL BE
REDUCED BY SUCH AMOUNT AS PROVIDED IN SECTION 2.8(A)(IV).
SUCH BONUSES OR OTHER
COMPENSATION SHALL BE PAID ONLY IF THE RECEIVING EMPLOYEE EXECUTES AND DELIVERS
A RELEASE IN THE FORM ATTACHED HERETO AS EXHIBIT A.
SECTION 6.13
PERSONAL PROPERTY.
PRIOR TO CLOSING, THE PERSONAL PROPERTY SET
FORTH ON SCHEDULE 6.13 SHALL BE TRANSFERRED FROM THE SUBJECT COMPANIES TO SMITH
OR HIS ASSIGNS; PROVIDED, THAT NONE OF THE SUBJECT COMPANIES SHALL INCUR ANY
LIABILITY IN CONNECTION WITH SUCH TRANSFER.
SECTION 6.14
FINANCIAL STATEMENTS.
THE SUBJECT