SELLER THAT WAS NOT AN ASSUMED CONTRACT OR ASSUMED
LEASE ON THE CLOSING DATE, THE SELLERS WILL USE THEIR COMMERCIALLY REASONABLE
EFFORTS TO ASSIGN SUCH CONTRACT OR LEASE TO MEDQUIST; PROVIDED, HOWEVER, NOTHING
HEREIN SHALL BE DEEMED OR CONSTRUED TO OBLIGATE THE SELLERS TO RETAIN, OR
REFRAIN FROM REJECTING OR TERMINATING ANY CONTRACT AFTER THE DESIGNATION
DEADLINE THAT DOES NOT CONSTITUTE AN ASSUMED CONTRACT OR ASSUMED LEASE. WITH
RESPECT TO EACH ASSUMED CONTRACT, MEDQUIST AND, AS APPLICABLE, THE MEDQUIST
DESIGNEES SHALL PROVIDE ADEQUATE ASSURANCE OF THE FUTURE PERFORMANCE OF SUCH
ASSUMED CONTRACT BY MEDQUIST AND, AS APPLICABLE, SUCH MEDQUIST DESIGNEES.
SECTION 2.10
PURCHASE PRICE DEPOSIT.
(A)
WITHIN ONE (1) BUSINESS DAY OF THE AUCTION, PURCHASERS SHALL
HAVE DEPOSITED INTO ESCROW AN AGGREGATE EARNEST MONEY DEPOSIT (THE "PURCHASE
PRICE DEPOSIT") IN THE AMOUNT OF $11,633,390 AS SECURITY FOR THE PERFORMANCE OF
THE PURCHASERS' OBLIGATIONS UNDER THIS AGREEMENT.
THE PURCHASE PRICE DEPOSIT
TOGETHER WITH ANY INTEREST THEREON SHALL BE APPLIED AGAINST THE PURCHASE PRICE
AT CLOSING IN ACCORDANCE WITH THE DEPOSIT ESCROW AGREEMENT.
EXCEPT AS SET FORTH
IN SECTION 2.10(B), IF THIS AGREEMENT SHALL BE TERMINATED PURSUANT TO SECTION
8.1, THE
-22-
Purchase Price Deposit, together with any interest earned thereon, shall be
delivered to the Purchasers no later than one Business Day after such
termination.
(B)
IF THIS AGREEMENT IS TERMINATED BY SELLERS PURSUANT TO SECTION
8.1(D) OR SECTION 8.1(K), THE PURCHASE PRICE DEPOSIT, AND ALL INTEREST THEREON,
SHALL BE DELIVERED TO THE SELLERS IN ACCORDANCE WITH THE TERMS OF THE DEPOSIT
ESCROW AGREEMENT.
ARTICLE III
COURT APPROVAL
SECTION 3.1
BID PROTECTIONS.
THE PURCHASERS AND THE SELLERS
ACKNOWLEDGE THAT THE SELLERS MUST TAKE REASONABLE STEPS TO DEMONSTRATE THAT THEY
HAVE SOUGHT TO OBTAIN THE HIGHEST OR BEST PRICE FOR THE PURCHASED ASSETS,
INCLUDING GIVING NOTICE THEREOF TO THE CREDITORS OF THE SELLERS AND OTHER
INTERESTED PARTIES, PROVIDING INFORMATION ABOUT THE PURCHASED ASSETS TO
PROSPECTIVE BIDDERS (SUBJECT TO CONFIDENTIALITY AGREEMENTS NO LESS RESTRICTIVE
THAN THE CONFIDENTIALITY AGREEMENT SIGNED BY PURCHASERS IN FAVOR OF SPHERIS
INC.), ENTERTAINING HIGHER OR BETTER QUALIFIED OFFERS FROM SUCH PROSPECTIVE
BIDDERS, AND, IN THE EVENT THAT ADDITIONAL QUALIFIED PROSPECTIVE BIDDERS DESIRE
TO BID FOR THE PURCHASED ASSETS, CONDUCTING AN AUCTION (THE "AUCTION").
AS A
RESULT, THE PARTIES HAVE AGREED TO CERTAIN BIDDING PROCEDURES, AS SET FORTH IN
THE PROPOSED SALE PROCEDURES ORDER ATTACHED HERETO AS EXHIBIT I.
SECTION 3.2
THE SALE PROCEDURES ORDER.
THE PURCHASERS AND THE
SELLERS ACKNOWLEDGE AND AGREE THAT THE BANKRUPTCY COURT APPROVED THE SALE
PROCEDURES ORDER ON FEBRUARY 23. 2010.
SECTION 3.3
THE HEARING AND THE SALE ORDER.
THE PURCHASERS AND THE
SELLERS ACKNOWLEDGE THAT PURSUANT TO THE SALES PROCEDURES ORDER THE HEARING IS
SCHEDULED FOR APRIL 15, 2010 AT 1:00 P.M. AND THE HEARING SHALL BE CONCLUDED IN
NO EVENT LATER THAN THREE (3) BUSINESS DAYS AFTER THE CONCLUSION OF THE
AUCTION.
AT THE HEARING, IF THE PURCHASERS ARE THE SUCCESSFUL BIDDER IN THE
AUCTION, THE SELLERS SHALL SEEK THE ENTRY OF THE SALE ORDER.
THE SALE ORDER
SHALL, AMONG OTHER MATTERS,