SELLER, THE COMPANY OR BUYER. NO PROVISION OF THIS AGREEMENT SHALL CONSTITUTE A
LIMITATION ON THE RIGHT OF BUYER, THE COMPANY OR ANY OF BUYER'S AFFILIATES TO
TERMINATE AT WILL, OR CAUSE THE TERMINATION AT WILL OF, ANY EMPLOYEE OF THE
COMPANY.
(I)
TO THE EXTENT THAT THE ACQUIRED EMPLOYEES REMAIN EMPLOYED WITH
THE COMPANY OR BUYER OR ANY OF ITS AFFILIATES AFTER THE CLOSING, SUCH ACQUIRED
EMPLOYEES SHALL NOT BE DEEMED TO BE IN VIOLATION OF ANY CONFIDENTIALITY OR
NON-COMPETITION AGREEMENTS WITH SELLER OR ANY OF ITS AFFILIATES (OTHER THAN THE
COMPANY), IF APPLICABLE, SOLELY BY VIRTUE OF THEIR CONTINUING EMPLOYMENT BY THE
COMPANY FROM AND AFTER THE CLOSING DATE.
(J)
PRIOR TO THE CLOSING DATE, SELLER SHALL, OR SHALL CAUSE THE
COMPANY TO, SATISFY THE COMPANY'S SUCCESS FEE AND ACCELERATED INCENTIVE
COMPENSATION PAYMENT OBLIGATIONS EXISTING UNDER THE LETTER AGREEMENTS SET FORTH
ON SCHEDULE 5.10(J) OF THE DISCLOSURE SCHEDULE. FOLLOWING THE CLOSING DATE,
BUYER SHALL, OR SHALL CAUSE THE COMPANY TO, SATISFY THE COMPANY'S SEVERANCE
OBLIGATIONS EXISTING UNDER THE LETTER AGREEMENTS SET FORTH ON SCHEDULE
5.10(J) OF THE DISCLOSURE SCHEDULE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS.
(K)
PRIOR TO THE CLOSING DATE, SELLER SHALL, OR SHALL CAUSE THE
COMPANY TO, SATISFY ANY PAYMENT OBLIGATIONS OF THE COMPANY ACCRUED THROUGH THE
CLOSING DATE UNDER THE ANNUAL INCENTIVE COMPENSATION PLANS SET FORTH ON SCHEDULE
5.10(K) OF THE DISCLOSURE SCHEDULE.
22
SECTION 5.11
RETENTION OF RECORDS. BUYER SHALL RETAIN, AND CAUSE THE
COMPANY TO RETAIN, ALL BOOKS AND RECORDS RELATING TO (I) THE SELLER BENEFIT
PLANS, ACCOUNTING OR LEGAL MATTERS PRIOR TO THE CLOSING FOR A PERIOD OF AT LEAST
SEVEN (7) YEARS FROM THE DATE HEREOF AND (II) TAXES UNTIL THE STATUTE OF
LIMITATIONS (INCLUSIVE OF ALL EXTENSIONS, WAIVERS AND TOLLING PERIODS) IN
RESPECT OF THE TAX RETURN FOR WHICH SUCH TAX RECORDS RELATE HAS EXPIRED;
PROVIDED, HOWEVER, THAT AT THE END OF THE PERIOD REFERENCED IN CLAUSE (I) AND
(II), AS THE CASE MAY BE, ANY SUCH DOCUMENT OR RECORD MAY BE DISPOSED OF BY
BUYER OR THE COMPANY, IF BUYER OR THE COMPANY FIRST OFFERS TO SURRENDER
POSSESSION THEREOF TO SELLER AT SELLER'S EXPENSE. SELLER SHALL HAVE THE RIGHT
DURING BUSINESS HOURS, UPON REASONABLE NOTICE TO BUYER OR THE COMPANY, TO
INSPECT AND MAKE COPIES OF ANY SUCH RECORDS.
SECTION 5.12
RELEASE OF FINANCIAL ASSURANCES.
IN THE EVENT SELLER OR
ONE OF ITS AFFILIATES (OTHER THAN THE COMPANY) IS THE OBLIGOR ON A GUARANTY,
PERFORMANCE BOND, LETTER OF CREDIT OR SIMILAR INSTRUMENT FOR THE BENEFIT OF THE
COMPANY IMMEDIATELY PRIOR TO CLOSING (OTHER THAN IN RESPECT OF THE FINANCIAL
DEBT), BUYER SHALL USE ITS REASONABLE BEST EFFORTS TO CAUSE SELLER OR SUCH
AFFILIATE TO BE RELEASED FROM SUCH OBLIGATIONS AS OF THE CLOSING, AND SHALL
PROVIDE SUBSTITUTE FINANCIAL ASSURANCES THAT ARE SUBSTANTIALLY EQUIVALENT TO
SUCH OBLIGATIONS AS OF THE CLOSING. BUYER SHALL PROMPTLY REIMBURSE SELLER FOR
ANY PAYMENTS SELLER OR SUCH AFFILIATE MAKES ON OR AFTER THE CLOSING IN RESPECT
OF SUCH OBLIGATIONS.
SECTION 5.13
PLANT CLOSINGS. FOLLOWING