THE CLOSING DATE OR
ARE REFLECTED ON THE BALANCE SHEET.
(I)
NO EMPLOYEE WILL BECOME ENTITLED TO ANY BONUS, RETIREMENT,
SEVERANCE OR SIMILAR BENEFIT OR ENHANCED BENEFIT SOLELY AS A RESULT OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
36
9.03
EMPLOYEES AND OFFERS OF EMPLOYMENT.
(A)
ON OR PRIOR TO THE CLOSING DATE, BUYER MAY, AT ITS SOLE
DISCRETION, OFFER EMPLOYMENT ON AN AT-WILL BASIS TO ALL OF THE BUSINESS
EMPLOYEES. BUYER SHALL PROVIDE TO SELLER A COMPLETE AND ACCURATE LIST OF THE
TRANSFERRED EMPLOYEES AT LEAST TWO (2) BUSINESS DAYS PRIOR TO CLOSING.
(B)
SELLER AGREES TO (I) USE REASONABLE EFFORTS TO COOPERATE WITH
BUYER IN BUYER'S RECRUITMENT OF THE BUSINESS EMPLOYEES, (II) TERMINATE THE
EMPLOYMENT OF THE TRANSFERRED EMPLOYEES WITH SELLER (OR, ALTERNATIVELY, AT THE
DISCRETION OF SELLER, CAUSE THE TRANSFERRED EMPLOYEE TO VOLUNTARILY TERMINATE
HIS EMPLOYMENT AND, IN CONNECTION THEREWITH, SELLER WILL ACCEPT THE RESIGNATION
OF THE TRANSFERRED EMPLOYEES) ON OR IMMEDIATELY PRIOR TO THE CLOSING DATE.
SELLER AGREES TO PAY ANY AND ALL LIABILITIES WITH RESPECT TO EACH BUSINESS
EMPLOYEE, INCLUDING, BUT NOT LIMITED TO, ALL SUCH LIABILITIES RELATING TO SUCH
TERMINATION, INCLUDING, WITHOUT LIMITATION ANY PAYMENTS AND BENEFITS DUE SUCH
BUSINESS EMPLOYEES PURSUANT TO ACCRUED SALARY AND WAGES, BONUSES, COMMISSIONS,
PENSION, RETIREMENT, SAVINGS, HEALTH, WELFARE AND OTHER BENEFITS AND SEVERANCE,
PAYMENTS OR SIMILAR PAYMENTS OF THE TRANSFERRED EMPLOYEES, EXCLUDING VACATION
ACCRUALS ASSUMED BY THE BUYER IN ACCORDANCE WITH SECTION 2.03(E) , AND
(III) PROVIDE TO EACH TRANSFERRED EMPLOYEE ANY NOTICE (WHICH NOTICE SHALL BE
REASONABLY ACCEPTABLE TO BUYER) REQUIRED UNDER ANY LAW OR REGULATIONS IN RESPECT
OF SUCH TERMINATION INCLUDING, WITHOUT LIMITATION, THE CONSOLIDATED OMNIBUS
BUDGET RECONCILIATION ACT OF 1985, AS AMENDED ("COBRA"), AND THE FEDERAL WORKERS
ADJUSTMENT AND RETRAINING NOTIFICATION ACT ("WARN ACT").
(C)
BUYER AGREES THAT IT WILL MAKE OFFERS OF EMPLOYMENT TO THE
BUSINESS EMPLOYEES IN GOOD FAITH, WITH TERMS AND CONDITIONS, INCLUDING, BUT NOT
LIMITED TO, SALARY AND BENEFITS, TO BE DETERMINED AT THE BUYER'S SOLE
DISCRETION. NOTHING HEREIN SHALL BE CONSTRUED AS AN OFFER OF EMPLOYMENT ON OTHER
THAN AN EMPLOYEE-AT-WILL BASIS. SELLER WILL MAKE ALL REASONABLE EFFORTS TO
ASSIST BUYER IN HIRING ALL SUCH BUSINESS EMPLOYEES, AND SELLER WILL NOT TAKE ANY
ACTION THAT WOULD IMPEDE, HINDER, INTERFERE OR OTHERWISE COMPETE WITH BUYER'S
EFFORT TO HIRE ANY TRANSFERRED EMPLOYEE OR ANY OTHER BUSINESS EMPLOYEE. BUYER
SHALL NOT ASSUME RESPONSIBILITY FOR ANY BUSINESS EMPLOYEE UNTIL SUCH EMPLOYEE
COMMENCES EMPLOYMENT WITH BUYER, BUT IN NO EVENT SHALL BUYER ASSUME ANY
RESPONSIBILITY FOR ANY COMMITMENT, OBLIGATION, DUTY OR LIABILITY (I) OF SELLER
TO ANY BUSINESS EMPLOYEE, OR (II) TO ANY BUSINESS EMPLOYEE THAT AROSE PRIOR TO
THE CLOSING DATE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. BUYER SHALL NOT ASSUME
RESPONSIBILITY FOR ANY EMPLOYEE OF SELLER WHO IS NOT A TRANSFERRED EMPLOYEE AND
SELLER AGREES TO CONTINUE TO ASSUME ALL RESPONSIBILITIES, COMMITMENTS AND/OR
LIABILITIES FOR ANY EMPLOYEE OF SELLER WHO IS NOT A TRANSFERRED EMPLOYEE.
(D)
SELLER SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS (WITHOUT,
HOWEVER, ANY REQUIREMENT TO PAY MONIES OR ANY OTHER FORM