A
REASONABLE MANNER CONSISTENT WITH THE AMOUNT AND NATURE OF SAME AS A PERCENTAGE
OF SALES THAT WERE EXPENDED OR USED IN THE OPERATION OF THE SELLER'S BUSINESS AS
OPERATED AS OF THE CLOSING DATE, AND (III) NOT TAKE ANY ACTION (OTHER THAN
ACTIONS ENFORCING PURCHASER'S OR TRAFFIX'S RIGHTS UNDER ANY OTHER AGREEMENT
BETWEEN THEM AND HOTROCKET OR MARK) THAT WOULD HAVE THE REASONABLY FORESEEABLE
CONSEQUENCE OF REDUCING MARK'S ABILITY AS PRESIDENT OF NEWCO TO OPERATE THE
BUSINESS OF NEWCO AND MARK'S ABILITY TO RECEIVE THE CONTINGENT PAYMENTS, AND
(IV) CAUSE NEWCO TO BE MAINTAINED AS A SEPARATE WHOLLY-OWNED SUBSIDIARY OF
TRAFFIX.
DURING THE CONTINGENT PAYMENT PERIOD, NEITHER PURCHASER NOR TRAFFIX
WILL TAKE ANY OF THE FOLLOWING ACTIONS WITHOUT THE PRIOR WRITTEN APPROVAL OF
MARK, UNLESS THE OBLIGATIONS OF PURCHASER AND TRAFFIX IN THIS SECTION 7.7(A) ARE
ASSUMED BY THE TRANSFEREE OR SUCCESSOR OR SURVIVING ENTITY:
(I) SELL, LEASE OR
OTHERWISE DISPOSE OF ALL OR A MATERIAL PORTION OF THE ASSETS OF NEWCO; OR (II)
EFFECT ANY TRANSACTION THAT WOULD BE A CONSOLIDATION OR MERGER OF NEWCO WITH OR
INTO ANY OTHER CORPORATION OR CORPORATIONS OR THE SALE, TRANSFER OR ASSIGNMENT
OF SECURITIES OF NEWCO.
37
(B)
NOTWITHSTANDING THE RESTRICTIONS ON
PURCHASER AND TRAFFIX IN SECTION 7.7(A), (I) MARK ACKNOWLEDGES THAT HE WILL WORK
WITH PURCHASER AND TRAFFIX TO IMPLEMENT REASONABLE OPERATING EFFICIENCIES BY
CONSOLIDATING CERTAIN GENERAL, ADMINISTRATIVE, LEGAL, AND ACCOUNTING FUNCTIONS
THAT ARE DUPLICATED BY TRAFFIX'S AND/OR ITS AFFILIATES AND MARK'S STAFF;
PROVIDED, THAT THE IMPLEMENTATION OF ANY SUGGESTED CHANGE BY PURCHASER AND/OR
TRAFFIX PURSUANT TO THIS SECTION 7.7(B), OTHER THAN A CHANGE TO OUTSIDE LEGAL OR
ACCOUNTING FIRMS, SHALL BE SUBJECT TO THE CONSENT OF MARK, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD OR DELAYED (THE REASONABLENESS OF THE GRANTING OR
DENIAL OF SUCH CONSENT SHALL BE DETERMINED BY WHETHER THE REQUESTED CHANGE WOULD
INTERFERE IN A MATERIAL MANNER WITH THE MAXIMIZATION OF NEWCO EBITDA DURING THE
CONTINGENT PAYMENT PERIOD); PROVIDED, FURTHER, THAT THE FOREGOING CONSENT OF
MARK SHALL BE REQUIRED ONLY FOR SO LONG AS THE OPERATING THRESHOLD IS MET, AND
(II) SUCH RESTRICTIONS SHALL NOT BE APPLIED IN A MANNER THAT WOULD INTERFERE
WITH TRAFFIX' ABILITY TO IMPLEMENT SUCH INTERNAL CONTROLS THAT SATISFY THE
REQUIREMENTS OF THE LEGISLATION KNOWN AS THE SARBANES-OXLEY ACT OF 2002, THE
TERM "INTERNAL CONTROLS" BEING USED IN THE SAME MANNER AS UNDER SUCH
LEGISLATION, OR WITH TRAFFIX'S ABILITY TO FULFILL ITS REPORTING REQUIREMENTS
UNDER THE EXCHANGE ACT.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE
CONTRARY, ALL BILLING TO NEWCO'S CUSTOMERS, COLLECTIONS OF ACCOUNTS RECEIVABLE
AND ALL PAYMENTS TO NEWCO'S SUPPLIERS WILL BE PROCESSED BY TRAFFIX.
MARK SHALL
SUBMIT TO TRAFFIX ALL PURCHASE ORDERS, INSERTION ORDERS AND OTHER SUPPORTING
DOCUMENTATION NECESSARY FOR TRAFFIX TO UNDERTAKE THE AFOREMENTIONED PROCESSING,
TOGETHER WITH APPROPRIATE INVOICES PREPARED BY MARK SETTING FORTH IN REASONABLE
DETAIL THE ACTION TO BE TAKEN BY TRAFFIX.
IF ANY DISPUTE ARISES FROM ANY SUCH
INVOICE SUBMITTED BY MARK TO TRAFFIX, MARK AND TRAFFIX WILL WORK TOGETHER TO
RESOLVE SUCH DISPUTE