ASSIGNING THE
RIGHTS AND BENEFITS OF THE SELLER PURSUANT TO (I) THE STOCK PURCHASE AGREEMENT
BETWEEN SELLER AND THE COMPANY DATED AS OF
JUNE 24, 2005 (THE "PRIOR STOCK
PURCHASE AGREEMENT"), AND (II) EACH OF THE INDEMNITY AGREEMENTS BETWEEN SELLER
AND THE FOUNDERS (AS DEFINED IN THE PRIOR STOCK PURCHASE AGREEMENT) OF THE
COMPANY LISTED ON SCHEDULE 5.1(F), SUBSTANTIALLY IN THE FORM AND SUBSTANCE AS
EXHIBIT I ("ASSIGNMENT AGREEMENT").
(G)
PLEDGE AGREEMENT.
AN EXECUTED COPY OF THE PLEDGE AGREEMENT.
(H)
BONUS POOL.
BUYER SHALL HAVE RECEIVED EVIDENCE THAT ALL EARNINGS, EARN
OUTS, EMPLOYEE BONUS PAYOFF AND ANY SIMILAR ARRANGEMENTS, UNDER THE PRIOR STOCK
PURCHASE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE BONUS POOL, SHALL HAVE
BEEN TERMINATED WITHOUT ANY POTENTIAL LIABILITY OF BUYER, THE COMPANY OR ANY OF
THE COMPANY'S SUBSIDIARIES.
(I)
UCC-3'S; PAYOFF LETTERS.
FULLY EXECUTED UCC-3 TERMINATION STATEMENTS AND
OTHER TERMINATIONS, PAY-OFFS AND/OR RELEASES, OR, AT BUYER' OPTION, ASSIGNMENTS,
NECESSARY TO TERMINATE, RELEASE OR ASSIGN, AS THE CASE MAY BE, ALL LIENS ON THE
PROPERTIES OF THE COMPANY AND EACH OF THE COMPANY'S SUBSIDIARIES AND EVIDENCE OF
THE COMPLETE SATISFACTION IN FULL OF ALL OUTSTANDING INDEBTEDNESS OF THE COMPANY
AND EACH OF THE COMPANY'S SUBSIDIARIES (OTHER THAN WITH RESPECT TO CAPITALIZED
LEASES FOR EQUIPMENT USED IN THE ORDINARY COURSE OF BUSINESS).
31
(J)
TERMINATION OF AFFILIATE TRANSACTIONS.
BUYER SHALL HAVE RECEIVED
EVIDENCE SATISFACTORY TO BUYER OF THE TERMINATION AND AN APPROPRIATE RELEASE OF
ALL AFFILIATE TRANSACTIONS OTHER THAN THOSE SET FORTH ON SCHEDULE 5.1(J).
(K)
CLOSING DOCUMENTS.
ALL OF THE FOLLOWING DOCUMENTS:
(I)
PHYSICAL POSSESSION OF ALL BOOKS AND RECORDS, LICENSES AND
PERMITS, POLICIES, CONTRACTS, PLANS OR OTHER INSTRUMENTS OF THE COMPANY AND EACH
OF THE COMPANY'S SUBSIDIARIES THAT ARE IN THE POSSESSION OF THE COMPANY OR
SELLER; PROVIDED THAT ALL SUCH MATERIALS OTHER THAN THE CERTIFICATE(S)
REPRESENTING THE SHARES (WHICH SHALL BE DELIVERED TO BUYER AT THE CLOSING) SHALL
BE DEEMED DELIVERED TO BUYER IF THEY ARE PRESENT AT THE COMPANY'S CORPORATE
OFFICE;
(II)
GOOD STANDING CERTIFICATES OF THE COMPANY AND EACH OF THE
COMPANY'S SUBSIDIARIES FROM THE STATE OF ITS FORMATION AND EACH STATE WHERE IT
IS QUALIFIED TO CONDUCT BUSINESS, DATED WITHIN FIFTEEN (15) DAYS PRIOR TO THE
CLOSING DATE;
(III)
A COPY OF THE COMPANY'S AND EACH OF THE COMPANY'S SUBSIDIARIES
FORMATION DOCUMENTATION CERTIFIED BY THE SECRETARY OF THE STATE OF ITS FORMATION
OR EQUIVALENT GOVERNMENTAL OFFICER; AND
(IV)
SUCH OTHER DOCUMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT AS BUYER MAY REASONABLY REQUEST.
5.2.
DELIVERIES BY BUYER.
AT THE CLOSING, IN ADDITION TO THE ITEMS SPECIFIED
IN SECTION 1.5(B)(II), BUYER SHALL DELIVER TO SELLER THE TRANSITION SERVICES
AGREEMENT.
Article VI
Certain Covenants and Agreements
6.1.
TRANSFER TAXES.
ALL TRANSFER, DOCUMENTARY, SALES, USE, REGISTRATION AND
OTHER SUCH TAXES AND THE RELATED FEES (INCLUDING ANY PENALTIES, INTERESTS AND
ADDITIONS TO TAXES) INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT SHALL BE PAID BY SELLER.
THE PARTIES SHALL COOPERATE IN TIMELY
PREPARING AND FILING ALL TAX RETURNS AS MAY BE REQUIRED TO COMPLY WITH