5.11 FOR WHICH CUSTOMER OVERPAYMENTS
THAT HAVE BEEN RETAINED BY THE SELLER.
ARTICLE VI
COVENANTS OF BUYER
6.01
CERTAIN OBLIGATIONS WITH RESPECT TO THE OPERATION OF THE BUSINESS.
(A)
AT ALL TIMES DURING THE EARNOUT PERIOD, THE BUYER SHALL KEEP BOOKS
AND RECORDS WITH RESPECT TO THE OPERATIONS OF THE BUSINESS AND SHALL MAINTAIN
FINANCIAL RECORDS WITH RESPECT THERETO, IN ALL EVENTS SUFFICIENT TO DETERMINE
THE EARNOUT PAYMENT. THE BUYER, FOR SO LONG AS THE EARNOUT PAYMENT IS PAYABLE OR
ARE IN DISPUTE, SHALL PROVIDE ACCESS (DURING NORMAL BUSINESS HOURS AND UPON
REASONABLE PRIOR WRITTEN NOTICE) TO A SELLER REPRESENTATIVE FROM A NATIONALLY
RECOGNIZED ACCOUNTING FIRM, WHO IS NOT REASONABLY OBJECTIONABLE TO THE BUYER, TO
SUCH BOOKS AND RECORDS FOR PURPOSES OF VERIFYING THE EARNOUT PAYMENT. SUCH BOOKS
AND RECORDS SHALL BE KEPT IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES, CONSISTENT WITH THE HISTORICAL PRACTICES OF BUYER, TO THE EXTENT
PRACTICABLE.
(B)
UNTIL THE DATE THAT IS SIX MONTHS FROM THE CLOSING DATE, WITHOUT
PRIOR CONSULTATION WITH AND APPROVAL BY SELLER, BUYER SHALL NOT PROVIDE CUSTOMER
MAINTENANCE OR SOFTWARE UPGRADES UNDER ANY CONTRACT OR ADDITIONAL LICENSES TO
ANY CUSTOMER OF THE BUSINESS THAT IS MORE THAN 120 DAYS PAST DUE IN PAYING
AMOUNTS OWED TO SELLER UNDER ACCOUNTS RECEIVABLE OUTSTANDING AS OF THE CLOSING
DATE.
6.02
POST-CLOSING TRANSITION. TO THE EXTENT BUYER'S EMPLOYEES TEMPORARILY
RESIDE AT SELLER'S OFFICE IN WESTBOROUGH, MA AFTER THE CLOSING TO FACILITATE
TRANSITION ISSUES, BUYER AGREES THAT SUCH EMPLOYEES (AND ANY EQUIPMENT OR OTHER
ASSETS OF BUYER) SHALL BE REMOVED FROM SELLER'S PREMISES BY JUNE 1, 2006.
6.03
SELLER LICENSE AGREEMENT. AT THE CLOSING, THE BUYER SHALL ENTER INTO
A NON-EXCLUSIVE, END-USER LICENSE AGREEMENT IN FAVOR OF SELLER FOR 15 NAMED
USERS, CONTAINING THE TERMS AND CONDITIONS SET FORTH IN THE SELLER LICENSE
AGREEMENT ATTACHED HERETO AS EXHIBIT D, WHICH ARE THE SAME TERMS AND CONDITIONS
AS ARE SET FORTH IN SELLER'S STANDARD END-USER AGREEMENT (THE "SELLER LICENSE
AGREEMENT"). PURSUANT TO THE SELLER LICENSE AGREEMENT, BUYER WILL GRANT SELLER A
NON-EXCLUSIVE RIGHT AND LICENSE TO USE RADIANT BUSINESS DOCUMENT SERVER AND
RADIANT MAILMANAGER FOR SELLER'S OWN INTERNAL BUSINESS PURPOSES. IN ADDITION,
THE BUYER SHALL PROVIDE THE SELLER STANDARD SUPPORT AND MAINTENANCE FOR SUCH
SOFTWARE PRODUCTS FOR A PERIOD OF NOT LESS THAN 5 YEARS, AT THE ANNUAL RATE OF
$5,000 PER YEAR.
6.04
AUDIT FEES. WITHIN 10 DAYS AFTER THE LATER OF (I) RECEIPT OF THE
AUDITED FINANCIAL STATEMENTS REQUIRED PURSUANT TO SECTION 5.09 HEREOF, OR
(II) RECEIPT OF AN INVOICE FOR THE AUDITS OF SUCH FINANCIAL STATEMENTS OF THE
BUSINESS AND THE FINANCIAL STATEMENTS OF THE BUSINESS REQUIRED PURSUANT TO
SECTION 10.02(E) HEREOF, BUYER SHALL PAY TO MILLER ELLIN & COMPANY, LLP ITS FEES
FOR SUCH AUDITS, IN AN AGGREGATE AMOUNT NOT TO EXCEED $60,000.
29
6.05
APPLICATION OF CASH RECEIPTS. IF, AT ANY TIME AFTER THE CLOSING, THE
BUYER RECEIVES ANY PAYMENTS IN RESPECT OF INVOICES BILLED BY THE SELLER PRIOR TO
THE CLOSING, THEN THE BUYER SHALL PROMPTLY REMIT SUCH PAYMENTS TO