WITHIN FIVE (5) DAYS AFTER THE COMPLETION OF THE CLOSING DATE
AUDIT AND SUBJECT TO SECTIONS 7.5 AND 10.6 HEREOF, THE PARTIES SHALL DETERMINE
THE FREE CASH FLOW (THE "STUB PERIOD FREE CASH FLOW") FOR THE PERIOD COMMENCING
JANUARY 1, 2008 AND ENDING ON THE CLOSING DATE (THE "STUB PERIOD").
THE
DETERMINATION OF THE STUB PERIOD FREE CASH FLOW IN ACCORDANCE WITH THIS
SECTION 7.3 SHALL BE MADE IN A MANNER CONSISTENT WITH THE PARTIES' PRIOR
PRACTICE IN DETERMINING FREE CASH FLOW.
FOR PURPOSES OF CLARIFICATION, ANY
ACCRUALS MADE ON OR PRIOR TO THE CLOSING DATE SHALL BE APPROPRIATELY ADJUSTED TO
REFLECT FACTS KNOWN AT THE TIME THE STUB PERIOD FREE CASH FLOW IS DETERMINED.
WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE DETERMINATION OF THE STUB PERIOD
FREE CASH FLOW, THE COMPANY SHALL DISTRIBUTE, AND BUYER SHALL CAUSE THE COMPANY
TO DISTRIBUTE, TO ASAP INVESTORS AND CRG INVESTORS 50% AND 25%, RESPECTIVELY, OF
THE STUB PERIOD FREE CASH FLOW, LESS ANY AMOUNTS RELATING TO THE STUB PERIOD
PREVIOUSLY DISTRIBUTED PURSUANT TO THE OPERATING AGREEMENT.
FOR FEDERAL AND
STATE INCOME TAX RETURN REPORTING PURPOSES, THE ACQUIRED COMPANIES SHALL REPORT
PROFITS OR LOSSES DURING THE STUB PERIOD BASED UPON A CLOSING OF THE BOOKS AS OF
THE CLOSING DATE AND NOT A PRO RATA ALLOCATION BASED ON THE ACQUIRED COMPANIES'
OPERATIONS FOLLOWING THE CLOSING.
7.4
Non-Disclosure, Non-Solicitation,
Non-Competition, and Other Covenants.
A.
RECITALS.
AS A MATERIAL INDUCEMENT TO
BUYER AND PARENT TO ENTER INTO THIS AGREEMENT AND FOR BUYER AND PARENT TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND TO PAY SELLERS
THE PURCHASE PRICE AS PROVIDED IN ARTICLE II ABOVE, EACH SELLER AND EACH EQUITY
OWNER MAKES THE COVENANTS IN THIS SECTION 7.4. EACH SELLER AND EACH EQUITY OWNER
ACKNOWLEDGES THAT (I) IN THE ABSENCE OF THE COVENANTS IN THIS SECTION 7.4,
NEITHER BUYER NOR PARENT WOULD HAVE ENTERED INTO THIS AGREEMENT AND BUYER WOULD
NOT HAVE PURCHASED THE MEMBERSHIP INTEREST, AND (II) THE COVENANTS IN THIS
SECTION 7.4 ARE SEPARATE, DIVISIBLE AND DISTINCT COVENANTS GIVEN INDIVIDUALLY BY
EACH SELLER AND EACH EQUITY OWNER FOR THE BENEFIT OF BUYER, PARENT AND THE
ACQUIRED COMPANIES (COLLECTIVELY, THE "PROTECTED PARTIES") AND ARE ASSIGNABLE BY
THE PROTECTED PARTIES TO THE EXTENT PROVIDED IN SECTION 7.4(K). EACH EQUITY
OWNER FURTHER ACKNOWLEDGES THAT, AS THE DIRECT AND INDIRECT OWNERS OF SELLERS,
THEY HAVE BENEFITED, DIRECTLY OR INDIRECTLY, AS A RESULT OF THE PAYMENT TO THE
SELLERS BY BUYER AND PARENT OF THE PURCHASE PRICE FOR THE MEMBERSHIP INTEREST IN
ACCORDANCE WITH ARTICLE II ABOVE.
B.
NON-DISCLOSURE OF CONFIDENTIAL
INFORMATION.
I.
EACH SELLER AND EACH EQUITY OWNER
ACKNOWLEDGES THAT HE, SHE OR IT HAS BEEN PRIVY TO CONFIDENTIAL INFORMATION AND
FOR THE BENEFIT OF THE PROTECTED PARTIES, EACH SELLER AND EACH EQUITY OWNER
COVENANTS AND AGREES THAT, DURING THE APPLICABLE TERM, HE, SHE OR IT SHALL:
49
A)
NOT USE, DIVULGE OR DISCLOSE, DIRECTLY
OR INDIRECTLY, (OTHER THAN TO THEIR RESPECTIVE ADVISORS WHO ARE SUBJECT TO THE
SAME DUTY OF CONFIDENTIALITY AS THE SELLERS AND