TO BUYER REVISED SCHEDULES TO THIS
AGREEMENT UPDATING THE INFORMATION SHOWN THEREON TO THE CLOSING DATE.
8
(VI)
SELLER AND BUYER SHALL EXECUTE AND DELIVER ALL SUCH INSTRUMENTS,
DOCUMENTS AND CERTIFICATES AS MAY BE REASONABLY REQUESTED BY THE OTHER PARTY
THAT ARE NECESSARY, APPROPRIATE OR DESIRABLE FOR THE CONSUMMATION AT THE CLOSING
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(C)
AN AMOUNT EQUAL TO $100,000 OF THE CASH PURCHASE PRICE WILL BE
HELD BY THE BUYER AT CLOSING (THE "HOLDBACK"). THE HOLDBACK SHALL BE RELEASED TO
THE SELLER WITHIN 10 DAYS AFTER THE DELIVERY OF THE AUDITED FINANCIAL STATEMENTS
AS REQUIRED UNDER SECTION 5.09. TO THE EXTENT THAT THE SELLER DOES NOT DELIVER
THE AUDITED FINANCIAL STATEMENTS AS REQUIRED UNDER SECTION 5.09, THE BUYER SHALL
BE ENTITLED TO RETAIN THE HOLDBACK. THE BUYER IS NOT LIMITED TO SET-OFF AGAINST
THE HOLDBACK AS AN EXCLUSIVE REMEDY FOR DAMAGES RELATING TO THE BREACH OF
SECTION 5.09.
2.07
EARNOUT PAYMENTS.
(A)
FOR THE PERIOD BEGINNING ON THE CLOSING DATE AND LASTING UNTIL THE
EIGHTEEN MONTH ANNIVERSARY OF THE CLOSING DATE (THE "EARNOUT PERIOD"), BUYER
SHALL PAY TO THE SELLER, AT THE END OF EACH FISCAL QUARTER, IN ACCORDANCE WITH
THIS SECTION 2.07, AN AMOUNT (EACH AN "EARNOUT PAYMENT" AND TOGETHER THE
"EARNOUT PAYMENTS") CALCULATED BY MULTIPLYING THE TOTAL CLEARSTORY REVENUES FOR
SUCH PERIOD BY 30%. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AS RELATES
TO THE FIRST $750,000 IN ACCRUED EARNOUT PAYMENTS ("INITIAL EARNOUT PAYMENT"),
SUCH INITIAL EARNOUT PAYMENT SHALL BE HELD-BACK BY BUYER AND SHALL NOT BE PAID
UNTIL TWELVE MONTHS AFTER THE CLOSING DATE ("INITIAL EARNOUT DUE DATE");
PROVIDED, HOWEVER, THAT BUYER SHALL HAVE THE RIGHT TO OFFSET AGAINST SUCH
INITIAL EARNOUT PAYMENT ANY DAMAGES OWED BY SELLER TO THE BUYER AS AND TO THE
EXTENT SET FORTH IN ARTICLE XI. AFTER PAYMENT OF ANY SUCH DAMAGES AND RESOLUTION
OF ANY SUCH UNRESOLVED CLAIM, ANY AMOUNT OF THE INITIAL EARNOUT PAYMENTS
REMAINING OWED TO THE SELLER WITH RESPECT TO SUCH CLAIM SHALL BE PROMPTLY PAID
TO SELLER BY THE BUYER. FOR AVOIDANCE OF DOUBT, THE PARTIES ACKNOWLEDGE AND
AGREE THAT ONLY THE INITIAL EARNOUT PAYMENT SHALL BE SUBJECT TO BUYER'S RIGHT OF
OFFSET AS AFORESAID AND NOTHING IN THE IMMEDIATELY PRECEDING SENTENCE SHALL
AFFECT THE TIMING OF, OR SELLER'S RIGHT TO RECEIVE, ANY EARNOUT PAYMENT OTHER
THAN THE INITIAL EARNOUT PAYMENT.
(B)
"TOTAL CLEARSTORY REVENUES" SHALL MEAN THE TOTAL NET REVENUES OF
THE BUSINESS (WHETHER UNDERTAKEN BY BUYER DIRECTLY OR WHETHER OPERATION BY BUYER
SEPARATELY AS A DISTINCT SUBSIDIARY OF BUYER OR OTHERWISE DIRECTLY OR INDIRECTLY
BY BUYER), FOR THE APPLICABLE QUARTER OR OTHER PERIOD DURING THE EARNOUT PERIOD,
DETERMINED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES AND AS
PROVIDED HEREIN, FROM THE SALE OR LICENSE, INCLUDING SUBSCRIPTIONS, OF THE
CLEARSTORY PRODUCTS, PRODUCT MAINTENANCE CONTRACTS FOR CLEARSTORY PRODUCTS, OR
THE SALE OF BUSINESS CONSULTING AND PRODUCT IMPLEMENTATION SERVICES RELATED TO
THE CLEARSTORY PRODUCTS.
"ClearStory Products" means the software products developed by the Seller known
as Radiant Business Document Server and Radiant