HEREIN SHALL, HOWEVER, LIMIT THE ABILITY OF GUARANTOR OR ANY OF GUARANTOR'S
OTHER AFFILIATES FROM ENGAGING IN OTHER BUSINESSES OR OPERATIONS, WHETHER OR NOT
SUCH OTHER BUSINESSES OR OPERATIONS ARE SIMILAR TO, OR COMPLIMENTARY WITH THE
BUSINESS.
SHOULD BUYER BREACH THE COVENANTS SET FORTH IN THIS SECTION 4.7, THE
EARNOUT PAYMENTS SHALL IMMEDIATELY BECOME DUE IN FULL, AND BUYER SHALL PROMPTLY
PAY SUCH AMOUNT TO SELLER.
4.8
EARNOUT DETERMINATION.
AS PROMPTLY AS
PRACTICAL AFTER THE END OF EACH OF YEAR 1 AND YEAR 2, BUT IN NO EVENT LATER THAN
THIRTY (30) DAYS AFTER THE END OF EACH SUCH YEAR, BUYER SHALL PREPARE AND
DELIVER TO SELLER A STATEMENT OF GROSS REVENUES FOR EACH OF YEAR 1 AND YEAR 2,
AS APPLICABLE PREPARED IN ACCORDANCE WITH GAAP AS MODIFIED BY THE DEFINITION OF
GROSS REVENUES TOGETHER WITH ALL RELEVANT SUPPORTING MATERIALS AND WORKPAPERS
USED IN SUCH DETERMINATION (THE "DETERMINATION").
BUYER SHALL MAKE AVAILABLE
ITS MANAGEMENT TEAM AND EMPLOYEES TO DISCUSS SUCH INFORMATION WITH SELLER.
SHOULD SELLER OBJECT TO THE DETERMINATION, SELLER SHALL GIVE WRITTEN NOTICE TO
BUYER OF ITS OBJECTIONS THERETO.
IF SELLER AND BUYER ARE UNABLE TO RECONCILE
THEIR DIFFERENCES IN WRITING WITHIN TWENTY (20) DAYS AFTER WRITTEN NOTICE OF THE
OBJECTION IS DELIVERED TO BUYER, THE ITEMS IN DISPUTE SHALL BE SUBMITTED TO A
MUTUALLY ACCEPTABLE ACCOUNTING FIRM FOR FINAL DETERMINATION (THE "DETERMINING
ACCOUNTANTS") AND THE GROSS REVENUES SHALL BE DETERMINED BY THE DETERMINING
ACCOUNTANTS AND SHALL BECOME FINAL AND CONCLUSIVE UPON ALL PARTIES HERETO.
THE
DETERMINING ACCOUNTANTS SHALL CONSIDER ONLY THE ITEMS IN DISPUTE AND SHALL BE
INSTRUCTED TO ACT WITHIN THIRTY (30) DAYS (OR SUCH LONGER PERIOD AS THE SELLER
AND BUYER MAY AGREE) TO RESOLVE ALL
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CLAIMS AND DISPUTE.
ALL EARNOUT PAYMENTS SHALL BE PAID WITHIN TWO (2) BUSINESS
DAYS OF FINAL DETERMINATION, WHETHER BY AGREEMENT OF THE PARTIES OR
DETERMINATION OF THE DETERMINING ACCOUNTANTS.
THE FEES AND EXPENSES OF THE
DETERMINING ACCOUNTANTS SHALL BE BORNE EQUALLY BY SELLER AND BUYER.
4.9
BOARD OBSERVATION RIGHTS.
FROM THE
EFFECTIVE DATE UNTIL THE DATE OF FINAL DETERMINATION OF THE PAYMENT OF THE
EARNOUT PAYMENTS, SELLER SHALL HAVE THE RIGHT TO ATTEND ALL MEETINGS EITHER IN
PERSON OR TELEPHONICALLY OF THE BOARD OF DIRECTORS AND SHAREHOLDERS OF BUYER IN
A NONVOTING OBSERVER CAPACITY, TO RECEIVE REASONABLE ADVANCED WRITTEN NOTICE OF
SUCH MEETINGS AND TO RECEIVE THE INFORMATION PROVIDED BY BUYER TO THE ATTENDEES
OF SUCH MEETINGS.
4.10
COOPERATION WITH INTELLECTUAL PROPERTY
ASSIGNMENTS.
SELLER AGREES TO EXECUTE AND DELIVER AT THE REQUEST OF BUYER, ALL
DOCUMENTS, INSTRUMENTS AND ASSIGNMENTS REASONABLY REQUESTED BY BUYER, AND TO
PERFORM ANY OTHER REASONABLE ACTS BUYER MAY REQUIRE IN ORDER TO VEST ALL OF
SELLER'S RIGHT, TITLE, AND INTEREST IN AND TO THE INTELLECTUAL PROPERTY RIGHTS
ACQUIRED BY BUYER HEREUNDER IN BUYER AND/OR TO PROVIDE EVIDENCE TO SUPPORT ANY
OF THE FOREGOING IN THE EVENT SUCH EVIDENCE IS REASONABLY DEEMED NECESSARY BY
BUYER, TO THE EXTENT SUCH EVIDENCE IS IN THE POSSESSION OR CONTROL OF SELLER.
BUYER SHALL REIMBURSE SELLER FOR ANY