This excerpt taken from the PRVT 8-K filed Jan 23, 2009.
9.12 [Intentionally Deleted]
9.13 Documentation of Procedures and Trade Secrets. Upon the request of Buyer, Subsidiaries will document and describe Trade Secrets, processes and business procedures specified by Buyer, in form and substance reasonably satisfactory to Buyer.
9.14 Compliance with Nasdaq Market Place Rule 4350(i). Nasdaq Rule 4350(i)(1)(C) requires that Private will not, without prior shareholder approval, issue shares of its Common Stock in excess of 20% of the outstanding Private Shares in connection with the Transaction, calculated in accordance with Nasdaq Rules (the Limit Amount), and that shareholder approval has not yet been obtained or will be obtained prior to the Closing Date. Accordingly, in no event will Private be required to issue Private Shares to Sellers in excess of the Limit Amount unless and until Private has received shareholder approval as required by Nasdaq rules. Private
agrees that following the Closing Date it will use commercially reasonable efforts to obtain shareholder approval at its 2009 Annual Meeting of Shareholders in compliance with applicable law, but in no event no later than the time the Limit Amount would be exceeded but for the restrictions under this Section 9.14. The inability of Private to obtain the requisite shareholder approval to issue and deliver the Earnout Shares as and when due under this Agreement by reason of the operation of the Limit Amount, shall be deemed to be a breach of this Agreement, provided however, that in no event shall any Seller be entitled to specifically enforce this provision as against Private, a Sellers sole remedy being for monetary damages.
9.15 Indemnification of Directors and Officers.
(a) From and after the Closing, Buyer will cause Merger Subs to, fulfill and honor in all respects the obligations of the Members and the Companies pursuant to any indemnification provision under the Organizational Documents of such Members and Companies in each case on the date of this Agreement (the Persons to be indemnified pursuant to the provisions referred to in this Section 9.15 shall be referred to as, collectively, the Company Indemnified Parties), and if any statute is amended to provide for benefits that are more favorable to the Company Indemnified Parties, then each Company Indemnified Party shall be entitled to the benefits of such amendment. The Organizational Documents of the Merger Subs shall contain the provisions with respect to indemnification, reimbursement, contribution, hold harmless and exculpation from liability set forth in the Organizational Documents of the Members on the date of this Agreement, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years after the Closing in any manner that would adversely affect the rights thereunder of any Company Indemnified Party (and if any statute is amended to provide for benefits that are more favorable to the Company Indemnified Parties, then each Company Indemnified Party shall be entitled to the benefits of such amendment). From and after the Closing, Merger Subs shall be jointly and severally obligated to pay the reasonable expenses, including reasonable attorneys fees, that may be incurred by any Company Indemnified Parties in enforcing the rights provided in this Section 9.15 and shall make any advances of such expenses to the Company Indemnified Parties that would be available under the Organizational Documents or other agreements of the Members and the Companies (in each case as in effect as of the date of this Agreement) with regard to the advancement of expenses.
(b) Each of Buyer and the Company Indemnified Parties shall cooperate, and cause their respective affiliates to cooperate, in the defense of any action and shall provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. If Buyer and/or the Merger Subs merges into, consolidates with or transfers all or substantially all of its assets to another Person or liquidates, dissolves or winds up its operations, then and in each such case, Buyer and/or the Merger Subs, as the case may be, shall make proper provision so that the surviving or resulting entity or the transferee in such transaction assumes the obligations of the Buyer and/or the Merger Subs under this Section 9.15. The obligations of Buyer and Merger Subs under this Section 9.15 shall not be terminated or modified in such a manner as to adversely affect any Company Indemnified Party to whom this Section 9.15 applies without the written consent of each affected Company Indemnified Party. The provisions of this Section 9.15 shall be in addition to any other rights available to the Company Indemnified Parties, shall survive the Closing, and are expressly intended for the benefit of the Company Indemnified Parties.
(c) Notwithstanding the other provisions of this Section 9.15, the provisions of this Section 9.15 shall not apply in respect of a claim involving a breach by any Seller or Subsidiary of any representation, warranty or covenant contained in this Agreement.
9.16 Adoption of New Bonus Payment Plan.
(a) Mamas currently maintains a Phantom Stock Unit Plan (the PSP), effective as of January 1, 2004, which is intended to allow its employees to share in the success of Mamas and the Companies on the terms set forth in the PSP. Under the terms of the PSP no rights to payment have accrued or are due and payable to any of the PSP participants, either as a result of the transactions contemplated by this Agreement or otherwise. However, the Parties wish to provide for the adoption of a new plan following the Effective Times of the Mergers to reward eligible employees for their participation in the success of Mamas and the Companies Accordingly, no later than 60 days from the date of this Agreement Buyer shall adopt or cause Mamas to adopt a new plan (the New Plan), containing the terms and conditions set forth in this Section 9.16 and Exhibit I, and such other terms and conditions as Buyer shall reasonably determine which are not inconsistent with this Section 9.16 and Exhibit I (the New Plan Schedule).
(b) Eligibility Only employees of Mamas and its subsidiaries identified in the New Plan Schedule who agree to release their interests in the PSP shall be eligible to participate in the New Plan.
(c) Payments Payments shall be made by Mamas from an aggregate bonus pool of $343,451. Payments under the New Plan will be payable following the Effective Times at the times and in the amounts set forth in the New Plan Schedule.
(d) Condition of Payments Payments to each participant in the New Plan participants (each a New Plan Participant) will be conditioned upon the continued employment of the New Plan Participant at the time the payment is scheduled to be made, as provided in the New Plan Schedule.
(e) Reallocation of Payments If and to the extent that any New Plan Participant is not entitled to receive a future payment under the New Plan solely by reason of his or her failure to be employed by Mamas or the Companies on the applicable payment date, then the aggregate amount of such payment and each future payment which such New Plan Participant would have been entitled to receive under the New Plan had his or her employment continued through the scheduled payment date of such future payment shall be allocated and paid to Bunimovitz, Sullivan and Woo (the Executives), when and as such payment would have been payable to such former New Plan Participant, such allocation to be made, in the proportion set forth in the New Plan Schedule.