ASSETS OR EQUITY INTERESTS, IN EACH
CASE (X) RELATED TO A BUSINESS THAT WOULD REASONABLY BE EXPECTED TO GENERATE
ANNUAL REVENUES (OR INCREASE THE PURCHASER'S ANNUAL CONSOLIDATED REVENUES) FROM
PRODUCTS COMPETITIVE WITH THE PRODUCTS BY AN AMOUNT EQUAL TO OR IN EXCESS OF $10
MILLION OR (Y) THAT WOULD REQUIRE A FILING UNDER THE HSR ACT OR ANY FOREIGN
ANTITRUST OR COMPETITION LAWS OR AFFECT ANY THEN EXISTING FILING MADE BY THE
PARTIES HEREUNDER UNDER THE HSR ACT OR ANY FOREIGN ANTITRUST OR COMPETITION LAWS
OR ANY REGULATORY APPROVAL OBTAINED IN CONNECTION THEREWITH.
(E)
SUBJECT TO APPLICABLE LAWS RELATING TO THE
EXCHANGE OF INFORMATION, THE SELLERS, ON THE ONE HAND, AND THE PURCHASER, ON THE
OTHER HAND, SHALL EACH FURNISH TO THE OTHER SUCH NECESSARY INFORMATION AND
REASONABLE ASSISTANCE AS THE OTHER MAY REASONABLY REQUEST IN CONNECTION WITH ITS
PREPARATION OF THE NOTICES AND REQUESTS REFERRED TO IN THIS SECTION 5.4 AND ANY
FILING OR APPROVAL PROCESS THAT IS NECESSARY UNDER THE HSR ACT, FOREIGN
ANTITRUST AND COMPETITION LAW AND ANY OTHER APPLICABLE LAW.
EXCEPT TO THE
EXTENT LIMITED BY APPLICABLE LAW, THE SELLERS, ON THE ONE HAND, AND THE
PURCHASER, ON THE OTHER HAND, SHALL (I) EACH KEEP EACH OTHER APPRISED OF THE
STATUS OF ANY COMMUNICATIONS WITH, AND ANY INQUIRIES OR REQUESTS FOR ADDITIONAL
INFORMATION FROM, ANY GOVERNMENTAL AUTHORITY IN CONNECTION WITH THIS PROCESS,
(II) PROVIDE EACH OTHER THE RIGHT TO REVIEW IN ADVANCE, AND TO THE EXTENT
APPLICABLE WILL CONSULT WITH EACH OTHER ON, ALL THE INFORMATION THAT APPEARS IN
ANY FILING MADE WITH, OR WRITTEN MATERIALS SUBMITTED TO, ANY THIRD PARTY OR
GOVERNMENTAL AUTHORITY IN CONNECTION WITH THE STOCK PURCHASE AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (IN EXERCISING THE FOREGOING RIGHT,
EACH OF THE PARTIES SHALL ACT REASONABLY AND AS PROMPTLY AS PRACTICABLE) AND
(III) COMPLY AS PROMPTLY AS REASONABLY PRACTICABLE AND IN ANY EVENT IN
ACCORDANCE WITH APPLICABLE LAW WITH ANY SUCH INQUIRY OR REQUEST.
(F)
AT LEAST TEN (10) BUSINESS DAYS PRIOR TO
THE CLOSING, THE SELLERS SHALL CAUSE THE COMPANY TO SUBMIT TO ALL PERSONS
ENTITLED TO VOTE (WITHIN THE MEANING OF THE TREASURY REGULATIONS UNDER SECTION
280G OF THE CODE), INCLUDING TO THE TAILWIND STOCKHOLDERS, THE DLJ STOCKHOLDERS
AND THE CREDIT OPPORTUNITIES STOCKHOLDER, THE MATERIAL FACTS CONCERNING ALL
POTENTIAL PAYMENTS CONTEMPLATED UNDER THE RETENTION PROGRAM UNDER SECTION 5.9(B)
AND THE SALE BONUS PROGRAM UNDER SECTION 5.9(C), WHICH SHALL SATISFY ALL
REQUIREMENTS OF THE DELAWARE GENERAL CORPORATION LAW AND SECTION 280G(B)(5)(B)
OF THE CODE AND THE TREASURY REGULATIONS THEREUNDER,
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AND THE SELLERS SHALL CAUSE THE COMPANY TO SOLICIT THE CONSENT OF SUCH
STOCKHOLDERS (THE "280G CONSENT") TO ANY PAYMENTS CONTEMPLATED THEREBY WHICH
WOULD CONSTITUTE "PARACHUTE PAYMENTS" AS DEFINED IN SECTION 280G(B)(2) OF THE
CODE ("PARACHUTE PAYMENTS").
THE COMPANY'S BOARD OF DIRECTORS SHALL RECOMMEND
APPROVAL OF THE PARACHUTE PAYMENTS, THE RETENTION PROGRAM AND THE SALE BONUS
PROGRAM, UNLESS IT BELIEVES IN GOOD FAITH, BASED ON THE WRITTEN OPINION OF THE
COMPANY'S COUNSEL, THAT SUCH RECOMMENDATION WOULD BE INCONSISTENT WITH THE