AND MEETINGS BETWEEN THE STOCKHOLDER REPRESENTATIVE AND ITS
REPRESENTATIVES, ON THE ONE HAND, AND THE OLD AIRCAST SELLERS AND THEIR
REPRESENTATIVES, ON THE OTHER HAND, THAT ARE PART OF THE SETTLEMENT NEGOTIATION
PROCESS; AND (Z) REQUESTING RELEASE OF THE PURCHASER FROM THE EARNOUT
OBLIGATIONS.
THE PURCHASER WILL BE PERMITTED BY THE SELLERS AND THE STOCKHOLDER
REPRESENTATIVE TO ATTEND AND PARTICIPATE IN ANY SUCH TELECONFERENCES AND
MEETINGS, ASSUMING THAT THE OLD AIRCAST SELLERS DO NOT OBJECT DIRECTLY TO THE
PURCHASER TO SUCH ATTENDANCE AND PARTICIPATION.
(E)
THE CONSUMMATION OF ANY SETTLEMENT OF THE EARNOUT OBLIGATIONS
PURSUANT TO SECTION 1.6(D) (THE "SETTLEMENT CLOSING") WILL OCCUR AFTER THE
CLOSING DATE AT SUCH DATE AND TIME DURING NORMAL BUSINESS HOURS ON A BUSINESS
DAY AS ARE DETERMINED BY THE STOCKHOLDER REPRESENTATIVE AND THE OLD AIRCAST
SELLERS.
AS SOON AS REASONABLY PRACTICABLE AFTER THE STOCKHOLDER REPRESENTATIVE
HAS REACHED AN AGREEMENT IN PRINCIPLE TO SETTLE THE EARNOUT OBLIGATIONS WITH THE
OLD AIRCAST SELLERS, BUT IN ANY EVENT NOT LESS THAN FIVE (5) BUSINESS DAYS PRIOR
TO THE ANTICIPATED DATE OF CONSUMMATION OF THE SETTLEMENT CLOSING, THE
STOCKHOLDER REPRESENTATIVE SHALL PROVIDE TO THE
7
PURCHASER WRITTEN NOTICE OF SUCH ANTICIPATED SETTLEMENT CLOSING, WHICH SHALL
INCLUDE THE DATE, TIME AND PLACE OF THE SETTLEMENT CLOSING AND A COPY OF THE
SETTLEMENT AGREEMENT EVIDENCING SUCH SETTLEMENT (THE FORM OF WHICH SHALL HAVE
BEEN PREVIOUSLY AGREED TO BY THE OLD AIRCAST SELLERS) (THE "SETTLEMENT
AGREEMENT").
AT THE SETTLEMENT CLOSING; (I) THE PURCHASER SHALL CAUSE THE
EARNOUT OBLIGORS TO EXECUTE AND DELIVER THE SETTLEMENT AGREEMENT (IF NOT
PREVIOUSLY EXECUTED); (II) THE SELLERS SHALL PAY TO AIRCAST INTERMEDIATE HOLDCO
OR ITS DESIGNEE(S) THE SELLERS' SHARE AND (III) THE PURCHASER SHALL CAUSE THE
SETTLEMENT PAYMENT AND ANY EARNOUT-RELATED COSTS TO BE PAID TO THE OLD AIRCAST
SELLERS.
THE SELLERS' SHARE SHALL BE PAID: (X) BY RELEASE FROM THE INDEMNITY
AND EARNOUT ESCROW FUNDS (IF THE SETTLEMENT CLOSING OCCURS ON OR PRIOR TO THE
END OF THE INDEMNITY AND EARNOUT ESCROW PERIOD AND TO THE EXTENT THERE ARE
SUFFICIENT INDEMNITY AND EARNOUT ESCROW FUNDS, AS OF THE SETTLEMENT CLOSING, TO
SATISFY EACH SELLER'S PORTION OF THE SELLERS' SHARE); AND (Y) SOLELY TO THE
EXTENT THAT THE SETTLEMENT CLOSING OCCURS AFTER THE END OF THE INDEMNITY AND
EARNOUT ESCROW PERIOD OR TO THE EXTENT THAT THE SELLERS' SHARE EXCEEDS THE
THEN-AVAILABLE INDEMNITY AND EARNOUT ESCROW FUNDS, BY PAYMENT BY THE SELLERS OF
SUCH REMAINING PART OF THE SELLERS' SHARE, BY INTER-BANK TRANSFER OR WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS, OR IN SUCH OTHER FORM AS THE PURCHASER
MAY AGREE, TO AIRCAST INTERMEDIATE HOLDCO OR ITS DESIGNEE(S).
(F)
IF THE EARNOUT OBLIGORS ARE UNABLE TO DETERMINE, PRIOR TO A TIME
REASONABLY IN ADVANCE OF THE CLOSING, WHETHER THE EARNOUT OBLIGATIONS WOULD BE
ACCELERATED AS A RESULT OF THE CONSUMMATION OF THE STOCK PURCHASE, THEN AFTER
THE CLOSING THE PURCHASER WILL USE ITS COMMERCIALLY REASONABLE BEST EFFORTS TO
DELIVER TO THE STOCKHOLDER REPRESENTATIVE A DRAFT CALCULATION OF THE "NET SALES"
FOR THE TWELVE (12) MONTH PERIOD