SUCH
MONCLA EMPLOYEE'S SHARE OF THE RETENTION COMPENSATION ON THE SECOND (2ND)
ANNIVERSARY OF THE CLOSING DATE; AND
(D)
THE REMAINING FIFTY PERCENT (50%) BALANCE ON THE THIRD (3RD)
ANNIVERSARY OF THE CLOSING DATE.
4.
ANY MONCLA EMPLOYEE NOT EMPLOYED BY PURCHASER ON ANY SUCH
ANNIVERSARY SHALL FORFEIT THE BALANCE OF SUCH MONCLA EMPLOYEE'S SHARE OF THE
RETENTION COMPENSATION PAYABLE ON SUCH ANNIVERSARY DATE OR AT ANY TIME
THEREAFTER, PROVIDED, HOWEVER, THAT CERTAIN OF THE RETENTION COMPENSATION MAY BE
DISTRIBUTED TO MONCLA EMPLOYEES WHO ARE NOT EMPLOYED ON SUCH ANNIVERSARY DATES
DUE TO INVOLUNTARY SEVERANCE FROM EMPLOYMENT UNDER PLAN TERMS.
5.
ANY FORFEITED AMOUNTS OF THE RETENTION COMPENSATION SHALL BE
ALLOCATED TO AND DISTRIBUTED AFTER THE THIRD ANNIVERSARY OF THE CLOSING DATE TO
THOSE MONCLA EMPLOYEES WHO ARE THEN EMPLOYED BY PURCHASER AS STATED UNDER PLAN
TERMS.
IN THE EVENT THAT SELLERS AND PURCHASERS ARE ABLE TO ESTABLISH A MUTUALLY
ACCEPTABLE PLAN THE INITIAL PURCHASE PRICE OTHERWISE PAYABLE TO SELLERS OF MWS
SHALL BE REDUCED BY THE PORTION OF THE RETENTION COMPENSATION PAID AS SOON AS
ADMINISTRATIVELY FEASIBLE AFTER THE CLOSING DATE AND BY THE PRESENT VALUE OF
FUTURE PAYMENTS OF THE BALANCE OF THE RETENTION COMPENSATION, BASED ON A
DISCOUNT RATE OF 5%, IN ORDER TO PROVIDE FUNDING FOR SUCH PLAN.
11
(G)
PURCHASER SHALL MAKE AVAILABLE TEN MILLION AND NO/100 DOLLARS
($10,000,000.00) OF ANNUAL CAPITAL INVESTMENT TO THE EARNOUT BUSINESS, SUBJECT
TO INVESTMENT RETURN AND OTHER REQUIREMENTS THAT THE PURCHASER USES WITH ITS
OTHER DIVISIONS.
(H)
SELLERS ACKNOWLEDGE AND ACCEPT THAT PURCHASER MAY RE-NAME THE
EARNOUT BUSINESS OR ANY PART OR PRODUCT THEREOF, AND MAY GENERALLY CHANGE ANY
PART OF THE BRANDING OR MARKETING STRATEGY OR ALTOGETHER RE-BRAND OR RE-MARKET
THE EARNOUT BUSINESS, OR ANY PART OR PRODUCT THEREOF, IN EACH CASE AT SUCH TIME
AND IN SUCH MANNER AND TO SUCH EXTENT (AND WITH OR WITHOUT NOTICE TO ANY PARTY)
AS THE PURCHASER MAY DETERMINE IN ITS SOLE DISCRETION.
(I)
SELLERS ACKNOWLEDGE AND ACCEPT THAT ANY OBLIGATION OF THE
PURCHASER PROVIDED FOR IN THIS SECTION 1.5 MAY BE PERFORMED OR SATISFIED BY ONE
OR MORE AFFILIATES OF THE PURCHASER, PROVIDED THAT SUCH ACKNOWLEDGEMENT AND
ACCEPTANCE DOES NOT RELEASE OR DISCHARGE THE PURCHASER FROM THAT OBLIGATION.
(J)
IN THE EVENT OF A DISPUTE RESPECTING THE REVENUE EARNOUT AMOUNT OR
THE EBITDA EARNOUT AMOUNT OR THE AMOUNT OF INTEREST THEREON TO BE PAID FOR A
PARTICULAR YEAR, SELLERS SHALL NOTIFY PURCHASER WITHIN TWENTY (20) DAYS AFTER
RECEIPT, FURNISHING PURCHASER WITH THE REASONS FOR THE DISAGREEMENT.
IF THE
PARTIES HAVE NOT RESOLVED THEIR DISAGREEMENTS WITHIN TWENTY (20) DAYS AFTER SAID
NOTICE, SELLERS AND PURCHASER SHALL SUBMIT THE CALCULATION TO THE ACCOUNTANTS
FOR RESOLUTION.
IF ISSUES IN DISPUTE ARE SUBMITTED TO THE ACCOUNTANTS FOR
RESOLUTION, (I) EACH PARTY WILL FURNISH TO THE ACCOUNTANTS SUCH WORK PAPERS AND
OTHER DOCUMENTS AND INFORMATION RELATING TO THE DISPUTED ISSUES AS THE
ACCOUNTANTS MAY REQUEST AND ARE AVAILABLE TO THAT PARTY OR ITS SUBSIDIARIES (OR
ITS INDEPENDENT PUBLIC ACCOUNTANTS), AND WILL BE AFFORDED THE