OBLIGATION TO MAKE CERTAIN PAYMENTS TO OLD
AIRCAST INC. AND OLD AIRCAST LLC OR THEIR RESPECTIVE ASSIGNS (COLLECTIVELY, THE
"OLD AIRCAST SELLERS") UPON THE SATISFACTION OF CONDITIONS SPECIFIED THEREIN
RELATING TO THE FINANCIAL PERFORMANCE OF AIRCAST INTERMEDIATE HOLDCO AND ITS
SUBSIDIARIES DURING THE TIME PERIODS SPECIFIED THEREIN, IN EACH CASE ON THE
TERMS AND CONDITIONS SET FORTH THEREIN (ANY SUCH OBLIGATIONS, THE "EARNOUT
OBLIGATIONS").
THE PURCHASER AND THE SELLERS AGREE THAT, EXCEPT TO THE EXTENT
DUE OR OWING (AT ANY TIME) FOR THE 2005 FISCAL YEAR OR ACCELERATED AS DESCRIBED
IN SECTION 1.2(B)(II) OR SECTION 1.6(F), THE EARNOUT OBLIGORS WILL REMAIN
RESPONSIBLE FOR THE EARNOUT OBLIGATIONS AND ALL EARNOUT-RELATED COSTS; PROVIDED,
HOWEVER, THAT THE SELLERS WILL PAY TO AIRCAST INTERMEDIATE HOLDCO OR ITS
DESIGNEE(S) ON BEHALF OF THE EARNOUT OBLIGORS: (I) EIGHTY PERCENT (80%) OF THE
AGGREGATE AMOUNT PAID TO THE OLD AIRCAST SELLERS IN COMPLETE AND FINAL
SETTLEMENT AND RELEASE OF THE EARNOUT OBLIGATIONS (THE "SETTLEMENT PAYMENT") AND
ANY EARNOUT-RELATED COSTS RELATED THERETO IF SUCH SETTLEMENT OCCURS WITHIN
NINETY (90) DAYS AFTER THE CLOSING DATE; OR (II) NINETY PERCENT (90%) OF THE
AGGREGATE OF ANY PAYOUT TO THE OLD AIRCAST SELLERS UNDER THE EARNOUT OBLIGATIONS
AND ANY SETTLEMENT PAYMENT (IF THE SETTLEMENT OCCURS AFTER THE NINETIETH (90TH)
DAY AFTER THE CLOSING DATE) AND ANY RELATED EARNOUT-RELATED COSTS (SUCH EIGHTY
PERCENT (80%) OR NINETY PERCENT (90%) SHARE OF THE SETTLEMENT PAYMENT AND
EARNOUT-RELATED COSTS, EACH THE "SELLERS' SHARE") AND PROVIDED FURTHER, HOWEVER
THAT ANY EARNOUT-RELATED COSTS ARISING FROM OR RELATED TO ANY FAILURE BY THE
EARNOUT OBLIGORS TO COMPLY WITH ANY PROVISION OF SECTION 1.8 OF THE AIRCAST
ASSET PURCHASE AGREEMENT AFTER THE CLOSING, AS MORE FULLY SET FORTH IN SECTION
1.6(B), WILL NOT BE INCLUDED IN THE CALCULATION OF THE SELLERS' SHARE FOR
PURPOSES OF THIS SECTION 1.6(A).
(B)
UNLESS AND UNTIL THE EARNOUT OBLIGATIONS ARE SETTLED OR
ACCELERATED AND PAID AS SET FORTH IN THIS SECTION 1.6, FROM AND AFTER THE
CLOSING, THE PURCHASER WILL USE ITS COMMERCIALLY REASONABLE BEST EFFORTS TO
CAUSE THE EARNOUT OBLIGORS AND THE PURCHASER'S OTHER SUBSIDIARIES TO COMPLY WITH
ALL OF THE OBLIGATIONS SET FORTH IN SECTION 1.8 OF THE AIRCAST ASSET PURCHASE
AGREEMENT RELATING TO THE EARNOUT OBLIGATIONS, INCLUDING: (I) THE OBLIGATION SET
FORTH IN SECTION 1.8(C) OF THE AIRCAST ASSET PURCHASE AGREEMENT TO DETERMINE THE
"NET SALES" FOR EACH SUBSEQUENT "EARNOUT YEAR" ON A PRO FORMA BASIS TO REMOVE
THE EFFECTS UPON THE CALCULATION OF THE ACTUAL "NET SALES" FOR EACH SUCH
"EARNOUT YEAR" OF THE "CHANGE OF CONTROL" RESULTING FROM THE CLOSING HEREUNDER
(THE QUOTED TERMS IN THIS SENTENCE HAVE THE RESPECTIVE MEANINGS SET FORTH IN THE
AIRCAST ASSET PURCHASE AGREEMENT); AND (II) THE OBLIGATION TO PAY TO THE OLD
AIRCAST SELLERS ANY AMOUNTS THAT ARE REQUIRED TO BE PAID BY THE EARNOUT OBLIGORS
TO THE OLD AIRCAST SELLERS FROM TIME TO TIME WITH RESPECT TO THE EARNOUT
OBLIGATIONS, IN ACCORDANCE WITH THE APPLICABLE TERMS AND CONDITIONS OF THE
AIRCAST ASSET PURCHASE AGREEMENT OR PURSUANT TO A SETTLEMENT AGREEMENT.
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