MAY HAVE AGAINST A SELLER OR AN EQUITY OWNER FOR DAMAGES
RESULTING FROM THEIR BREACH OF THIS SECTION 7.4. IF THE PROTECTED PARTIES
PREVAIL IN WHOLE OR IN PART IN OBTAINING ANY SUCH RELIEF, THE PROTECTED PARTIES
SHALL BE ENTITLED TO BE REIMBURSED BY THE BREACHING PARTY FOR THE REASONABLE
EXPENSES ASSOCIATED WITH SUCH LITIGATION, INCLUDING REASONABLE ATTORNEYS' FEES,
EXPERT WITNESS FEES, COSTS AND OTHER EXPENSES. THE LIMITATIONS ON A SELLER'S OR
EQUITY OWNER'S LIABILITY SET FORTH IN SECTIONS 10.1(E) AND 10.2 SHALL NOT APPLY
TO LIMIT, RESTRICT, OR MODIFY (I) A SELLER'S OR EQUITY OWNER'S LIABILITY UNDER
THIS SECTION 7.4, OR (II) THE RIGHTS AND REMEDIES OF THE PROTECTED PARTIES UNDER
THIS SECTION 7.4.
K.
ASSIGNMENT.
THIS SECTION 7.4 AND THE
COVENANTS OF EACH SELLER AND EACH EQUITY OWNER HEREIN SHALL BE BINDING UPON EACH
SELLER'S AND EACH EQUITY OWNER'S RESPECTIVE SUCCESSORS AND SHALL INURE TO THE
BENEFIT OF THE PROTECTED PARTIES' PERMITTED SUCCESSORS AND ASSIGNS AND WITHOUT
LIMITING THE FOREGOING, THIS SECTION 7.4 AND THE COVENANTS OF EACH SELLER AND
EACH EQUITY OWNER IN THIS SECTION 7.4 MAY BE ASSIGNED BY THE PROTECTED PARTIES
WITHOUT THE CONSENT OF ANY SELLER OR ANY EQUITY OWNER TO THE EXTENT ALL OR A
SUBSTANTIAL PART OF THE PROTECTED BUSINESS OF THE ACQUIRED COMPANIES IS ASSIGNED
OR OTHERWISE TRANSFERRED AND THE OBLIGATIONS OF EACH SELLER AND EACH EQUITY
OWNER SHALL BE FULLY ENFORCEABLE BY THE ASSIGNEE OR THE TRANSFEREE; PROVIDED,
FURTHER, THAT THE PROTECTED PARTIES SHALL PROVIDE NOTICE TO THE REPRESENTATIVES
OF SUCH ASSIGNMENT OR TRANSFER WITHIN A REASONABLE PERIOD OF TIME THEREAFTER.
L.
TERMINATION OF PRIOR COVENANT.
FOR
PURPOSES OF CLARIFICATION, AND WITHOUT OTHERWISE MODIFYING SECTION 6.13 OF THIS
AGREEMENT, IMMEDIATELY AS OF THE CLOSING, NONE OF THE SELLERS OR EQUITY OWNERS
WILL HAVE ANY ON-GOING OBLIGATIONS OR RESTRICTIONS UNDER SECTION 2.4 OR 8.8 OF
THE OPERATING AGREEMENT (AND THOSE SECTIONS SHALL BE SUPERSEDED BY THE TERMS OF
THIS SECTION 7.4).
7.5
Performance Bonuses.
The Acquired
Companies shall pay performance bonuses (the "Performance Bonuses") to certain
employees and officers of the Acquired Companies on or before two and one-half
(21⁄2) months after the Closing Date.
The Performance
53
Bonuses shall be accrued as a pre-closing expense of the Acquired Companies,
which expense shall be reflected in the determination of Stub Period Free Cash
Flow described in Section 7.3.
Those individuals included within the definition
of "Knowledge" shall determine in good faith, and obtaining the approval of the
Buyer (and such approval shall not be unseasonably withheld or delayed), the
eligibility of individuals and amounts payable thereto.
No third party
beneficiaries are intended hereby.
ARTICLE VIII - CONDITIONS TO OBLIGATION TO CLOSE
8.1
Conditions to Buyer's and Parent's
Obligation.
The obligation of Buyer and Parent to consummate the transactions
to be performed by them in connection with the Closing is subject to
satisfaction of the following conditions:
A.
THE REPRESENTATIONS AND WARRANTIES OF
THE SELLERS AND THE EQUITY OWNERS CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND
CORRECT IN ALL MATERIAL