THE COMPANY, THE SELLERS OR ANY OF THEIR
REPRESENTATIVES OR AFFILIATES SHALL, DIRECTLY OR INDIRECTLY, SOLICIT, INITIATE,
ENCOURAGE THE SUBMISSION OF, CONSIDER, OR NEGOTIATE WITH RESPECT TO, ANY
INQUIRIES, PROPOSALS OR OFFERS FROM ANY PERSON RELATING TO ANY TRANSACTION
INVOLVING THE ACQUISITION OF THE BUSINESS, THE ASSETS OF THE COMPANY OR ANY OF
THE CAPITAL STOCK OF THE COMPANY OR ITS SUBSIDIARIES, OR ANY SIMILAR
TRANSACTION, EXCEPT IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND OTHER THAN FOR SALES IN THE ORDINARY COURSE OF BUSINESS.
5.14
RETENTION BONUS AMENDMENTS.
THE COMPANY AND THE SELLERS SHALL TAKE
ALL NECESSARY ACTIONS PRIOR TO THE CLOSING TO (I) AMEND IN A MANNER SATISFACTORY
TO THE PURCHASER THE RETENTION BONUSES LISTED ON THE AFFILIATE TRANSACTIONS
SCHEDULE (THE "RETENTION BONUSES") SUCH THAT ALL RETENTION BONUSES SHALL BECOME
DUE AND PAYABLE IMMEDIATELY FOLLOWING THE CLOSING AND THAT, AS A CONDITION TO
THE RECEIPT OF SUCH RETENTION BONUSES, THE RECIPIENTS THEREOF SHALL BE REQUIRED
TO EXECUTE A RELEASE IN FAVOR OF THE COMPANY AND THE PURCHASER IN THE FORM
ATTACHED HERETO AS EXHIBIT E-1 AND (II) PROVIDE FOR THE WITHHOLDING OF ALL TAXES
OR OTHER AMOUNTS REQUIRED BY LAW TO BE WITHHELD FROM THE RETENTION BONUSES (THE
"WITHHOLDING AMOUNTS").
5.15
PAYMENT OF OBLIGATIONS.
THE COMPANY SHALL (A) ON OR PRIOR TO THE
CLOSING DATE, PAY AND DISCHARGE ALL COMPANY DEBT ALL OF WHICH SHALL BE LISTED ON
THE PAYMENT OBLIGATIONS SCHEDULE ATTACHED AS SCHEDULE B HERETO, (B) IMMEDIATELY
FOLLOWING THE CLOSING, PAY THE RETENTION BONUSES TO THE INDIVIDUALS AND IN THE
AMOUNTS LISTED ON THE PAYMENT OBLIGATIONS SCHEDULE ATTACHED AS SCHEDULE B
HERETO, AND (C) ON OR PRIOR TO THE CLOSING, PAY THE CONSIDERATION TO EACH OF THE
HOLDERS OF COMPANY OPTIONS ALL OF WHOM ARE LISTED ON THE CAPITALIZATION SCHEDULE
REQUIRED TO BE PAID TO EACH SUCH HOLDER (NET OF ALL TAXES OR OTHER AMOUNTS
REQUIRED BY LAW TO BE WITHHELD) FOR THE PURPOSE OF TERMINATING HIS OR HER
RESPECTIVE COMPANY OPTIONS.
THE AMOUNTS PAID UNDER CLAUSES (B) AND (C) (AND
CLAUSE (A) TO THE EXTENT THE SOURCE OF SUCH FUNDS IS THE PAYMENT TO BE MADE BY
THE PURCHASER UNDER SECTION 1.4(C)) SHALL BE FUNDED BY THE PURCHASER AT CLOSING
THROUGH A STOCKHOLDER CONTRIBUTION TO THE CAPITAL OF THE PAYOR COMPANY.
20
5.16
TAX MATTERS.
(A)
TAX REFUNDS AND TAX BENEFITS.
ANY INCOME TAX REFUNDS OR CREDITS
IN RESPECT OF AN OVERPAYMENT OF INCOME TAX OF THE COMPANY THAT ARE RECEIVED BY
THE PURCHASER OR THE COMPANY, AND ANY AMOUNTS CREDITED AGAINST INCOME TAX TO
WHICH THE PURCHASER OR THE COMPANY BECOME ENTITLED, IN EACH CASE THAT RELATE TO
A PRE-CLOSING TAX PERIOD (INCLUDING THE PRE-CLOSING PORTION OF ANY STRADDLE
PERIOD) OTHER THAN A REFUND OR CREDIT ATTRIBUTED TO A TAX ATTRIBUTE GENERATED IN
A POST-CLOSING TAX YEAR, SHALL, SUBJECT TO SECTION 5.16(E), BE FOR THE ACCOUNT
OF THE SELLERS, AND THE PURCHASER SHALL REMIT TO THE SELLERS' REPRESENTATIVE (ON
BEHALF OF THE SELLERS) ANY SUCH REFUND OR THE AMOUNT OF ANY