AND ALL SUCH CONSIDERATION, REIMBURSEMENTS
AND FEES TO THE SELLERS, THE GENERAL PARTNERS OF THE RESPECTIVE SELLERS OR THE
AFFILIATES OF THE TAILWIND STOCKHOLDERS (OTHER THAN THE COMPANY AND THE COMPANY
SUBSIDIARIES) FROM THE COMPANY AND THE COMPANY SUBSIDIARIES WHICH ARE DUE AND
PAYABLE OR ACCRUED THROUGH THE CLOSING SHALL HAVE BEEN PAID, EXCEPT FOR
OBLIGATIONS TO PAY CONSIDERATION, REIMBURSEMENT OR FEES EXPRESSLY PROVIDED IN
THIS AGREEMENT, THE INDEMNITY AND EARNOUT ESCROW AGREEMENT, THE RETENTION
PROGRAM ESCROW AGREEMENT OR ANY OTHER DOCUMENT ENTERED INTO BY THE SELLERS, ON
THE ONE HAND, AND THE PURCHASER, THE COMPANY OR ANY OF THE COMPANY SUBSIDIARIES,
ON THE OTHER HAND, AFTER THE EXECUTION AND DELIVERY OF THIS AGREEMENT.
6.2
CONDITIONS TO THE OBLIGATION OF THE
SELLERS.
THE RESPECTIVE OBLIGATIONS OF THE SELLERS TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IN CONNECTION WITH THE CLOSING SHALL
BE SUBJECT TO THE SATISFACTION OR WAIVER BY THE STOCKHOLDER REPRESENTATIVE ON OR
PRIOR TO THE CLOSING DATE OF EACH OF THE FOLLOWING CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER CONTAINED IN ARTICLE IV SHALL BE TRUE AND CORRECT IN ALL RESPECTS (IF
QUALIFIED BY MATERIALITY OR MATERIAL ADVERSE EFFECT) AND SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS (IF NOT QUALIFIED BY MATERIALITY OR MATERIAL
ADVERSE EFFECT), AS IF MADE AT AND AS OF THE CLOSING (EXCEPT WITH RESPECT TO
THOSE REPRESENTATIONS AND WARRANTIES THAT ARE MADE AS OF A SPECIFIC DATE, ONLY
AS OF SUCH DATE).
(B)
THE PURCHASER SHALL HAVE DULY PERFORMED AND
COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS AND AGREEMENTS CONTAINED
HEREIN REQUIRED TO BE PERFORMED OR COMPLIED WITH BY THE PURCHASER AT OR BEFORE
THE CLOSING.
(C)
THE PURCHASER SHALL HAVE DELIVERED TO THE
SELLERS A CERTIFICATE, DATED AS OF THE CLOSING DATE AND SIGNED BY AN OFFICER OF
THE PURCHASER, AS TO THE FULFILLMENT OF THE CONDITIONS SET FORTH IN SECTIONS
6.2(A) AND (B).
(D)
THE WAITING PERIOD APPLICABLE TO THE
CONSUMMATION OF THE STOCK PURCHASE UNDER THE HSR ACT AND UNDER ANY SIMILAR
APPLICABLE FOREIGN ANTITRUST OR COMPETITION LAWS SHALL HAVE EXPIRED OR BEEN
TERMINATED AND EACH OF THE REQUIRED CONSENTS SET FORTH ON SCHEDULE C HERETO
SHALL HAVE BEEN RECEIVED OR, WITH RESPECT TO ANY SUCH REQUIRED CONSENT FROM A
GOVERNMENTAL AUTHORITY, REASONABLY SATISFACTORY WRITTEN OR ORAL NOTIFICATION
SHALL HAVE BEEN RECEIVED FROM THE APPLICABLE GOVERNMENTAL AUTHORITY THAT ITS
APPROVAL OF, CONSENT TO OR AUTHORIZATION OF THE CLOSING IS NOT REQUIRED.
(E)
THERE SHALL NOT BE IN EFFECT ANY INJUNCTION
OR OTHER ORDER ISSUED BY A COURT OF COMPETENT JURISDICTION RESTRAINING OR
PROHIBITING THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
50
ARTICLE VII
INDEMNIFICATION
7.1
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
AND COVENANTS AND AGREEMENTS.
(A)
EACH OF THE REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER AND THE SELLERS CONTAINED IN THIS AGREEMENT SHALL SURVIVE UNTIL
THE LATER OF (A) JUNE 30, 2007 OR (B) IF THE CLOSING OCCURS AFTER JUNE 30, 2006,
THE FIRST ANNIVERSARY OF THE CLOSING, AND SHALL THEREAFTER EXPIRE, EXCEPT