(THE "ACCOUNTING REFEREE") PROMPTLY TO REVIEW THIS
AGREEMENT AND THE DISPUTED AMOUNTS. THE ACCOUNTING REFEREE SHALL DELIVER TO
SELLER AND BUYER, AS PROMPTLY AS PRACTICABLE, A REPORT SETTING FORTH THE
CALCULATION OF THE DISPUTED AMOUNT. THE REPORT OF THE ACCOUNTING REFEREE SHALL
BE FINAL AND BINDING UPON THE PARTIES HERETO. THE COST OF EACH SUCH REVIEW AND
REPORT SHALL BE BORNE BY THE SELLER; PROVIDED HOWEVER, THAT BUYER SHALL BEAR ALL
THE EXPENSES ASSOCIATED WITH ANY SUCH REVIEW IF THE APPLICABLE EARNOUT PAYMENT
EXCEEDS BUYER'S ORIGINAL CALCULATION OF SUCH AMOUNT BY MORE THAN FIVE PERCENT
(5%) OF SUCH ORIGINAL CALCULATION. THE SELLER AGREES TO KEEP ANY INFORMATION
PROVIDED PURSUANT TO THIS SECTION 2.07 CONFIDENTIAL; PROVIDED HOWEVER; THAT
NOTHING IN THIS SENTENCE SHALL PREVENT THE SELLER FROM USING SUCH INFORMATION TO
EXERCISE THE SELLER'S RIGHT TO DISPUTE THE CALCULATION AS SET FORTH ABOVE OR TO
FILE ANY REQUIRED TAX RETURNS.
(G)
AS BUYER'S SOLE AND EXCLUSIVE REMEDY, AND SELLER'S SOLE AND
EXCLUSIVE OBLIGATION IN RESPECT OF INDEMNITY CLAIMS UNDER SECTIONS 11.02(A)(I)
AND 11.02(A)(II), BUYER SHALL HAVE THE RIGHT TO OFFSET THE INITIAL EARNOUT
PAYMENT PAYABLE TO THE SELLER PURSUANT TO THIS SECTION 2.07, AGAINST ANY AMOUNT
OWED BY THE SELLER TO THE BUYER PURSUANT TO SECTION 11.02(A)(I) AND
11.02(A)(II).
(H)
IN THE EVENT THAT BUYER CONSUMMATES A BUYER SALE EVENT OR BUSINESS
SALE EVENT, AS DEFINED BELOW, PRIOR TO THE END OF THE EARNOUT PERIOD, BUYER
SHALL PROMPTLY NOTIFY SELLER. WITHIN TWENTY (20) DAYS AFTER THE SALE EVENT, THE
BUYER SHALL PAY TO SELLER A LUMP SUM AMOUNT EQUAL TO THE EARNOUT PAYMENT VALUE
(AS DEFINED BELOW). AS USED HEREIN, "EARNOUT PAYMENT VALUE" MEANS (A) IN THE
EVENT OF A BUYER SALE EVENT, THE NET PRESENT VALUE OF (X) THE
11
AVERAGE QUARTERLY EARNOUT PAYMENTS FROM THE CLOSING DATE TO THE QUARTER
IMMEDIATELY PRECEDING THE QUARTER IN WHICH THE BUYER SALE EVENT OCCURS
MULTIPLIED BY (Y) THE REMAINING TIME PERIOD (EXPRESSED IN FISCAL QUARTERS, OR
PORTIONS OF A QUARTER) OF THE EARNOUT PERIOD; AND (B) IN THE EVENT OF A BUSINESS
SALE EVENT, THE NET PRESENT VALUE OF THE DIFFERENCE BETWEEN (U) $2,250,000 AND
(W) THE AGGREGATE AMOUNT PAID TO SELLER PURSUANT TO THIS SECTION 2.07 AS OF AND
THROUGH THE DATE OF THE BUSINESS SALE EVENT (TO THE EXTENT THE AMOUNT PAID IS
LESS THAN $2,250,000). UPON PAYMENT BY BUYER OF THE EARNOUT PAYMENT VALUE TO
SELLER, THIS SECTION 2.07 SHALL IMMEDIATELY TERMINATE, WITHOUT ANY FURTHER
LIABILITY OF BUYER TO SELLER FOR EARNOUT PAYMENTS, EXCEPT AS SET FORTH IN THIS
PARAGRAPH. AS USED HEREIN, (C) THE TERM "BUYER SALE EVENT" SHALL MEAN (I) A
MERGER OR CONSOLIDATION OF BUYER WITH OR INTO ANY OTHER PERSON IF IMMEDIATELY
AFTER SUCH TRANSACTION PERSONS WHO WERE STOCKHOLDERS OF BUYER IMMEDIATELY BEFORE
SUCH TRANSACTION OWN LESS THAN 50% IN VOTING POWER OF THE ISSUED AND OUTSTANDING
STOCK OF THE RESULTING OR SURVIVING ENTITY; OR (II) A SALE BY BUYER OF ALL OR
SUBSTANTIALLY ALL OF ITS ASSETS, AND (D) THE TERM "BUSINESS SALE