(C)
AFTER THE CLOSING, THE PURCHASER WILL USE COMMERCIALLY REASONABLE
BEST EFFORTS TO DELIVER TO THE STOCKHOLDER REPRESENTATIVE APPROXIMATELY THIRTY
(30) DAYS PRIOR TO THE "EARNOUT AUDIT COMPLETION DATE" (AS DEFINED IN THE
AIRCAST ASSET PURCHASE AGREEMENT) (OR, IN THE CASE OF A "CHANGE OF CONTROL",
PRIOR TO THE DATE THAT IS THIRTY (30) DAYS FOLLOWING THE CLOSING THEREOF) A
DRAFT CALCULATION OF THE "NET SALES" FOR THE PRECEDING FISCAL YEAR ENDED
DECEMBER 31 (OR, IN THE CASE OF A "CHANGE OF CONTROL," FOR THE TWELVE (12) MONTH
PERIOD ENDED ON THE PRIOR MONTH END).
THE STOCKHOLDER REPRESENTATIVE SHALL HAVE
FIFTEEN (15) DAYS TO REVIEW AND UPDATE THE DRAFT CALCULATION AND SHALL, AT OR
BEFORE THE END OF SUCH FIFTEEN (15) DAY PERIOD, PROVIDE THE PURCHASER WITH ANY
WRITTEN OBJECTIONS TO THE PURCHASER'S DRAFT CALCULATION AND, IF APPLICABLE, WITH
THE STOCKHOLDER REPRESENTATIVE'S OWN CALCULATION OF "NET SALES" FOR THE
APPROPRIATE PERIOD.
IF THE STOCKHOLDER REPRESENTATIVE FAILS TO PROVIDE ANY
WRITTEN OBJECTION BY THE END OF SUCH FIFTEEN (15) DAY PERIOD, THEN THE
STOCKHOLDER REPRESENTATIVE SHALL BE DEEMED TO HAVE IRREVOCABLY AGREED THAT THE
PURCHASER AND ITS SUBSIDIARIES COMPLIED WITH SECTION 1.6(B) WITH RESPECT TO SUCH
CALCULATION.
(D)
AS BETWEEN THE SELLERS, ON THE ONE HAND, AND THE PURCHASER AND,
AFTER THE CLOSING, THE EARNOUT OBLIGORS, ON THE OTHER, BOTH PRIOR TO AND AFTER
THE CLOSING, THE SELLERS WILL CONTROL THE NEGOTIATION AND CONSUMMATION OF ANY
SETTLEMENT OF THE EARNOUT OBLIGATIONS (WITH THE SELLERS BEING REPRESENTED FOR
THIS PURPOSE BY THE STOCKHOLDER REPRESENTATIVE); PROVIDED, HOWEVER, THAT (I) THE
PURCHASER SHALL BE AFFORDED A REASONABLE PERIOD OF TIME, AND IN ANY EVENT NOT
LESS THAN FIVE (5) BUSINESS DAYS, TO REVIEW THE TERMS AND CONDITIONS OF ANY SUCH
SETTLEMENT; AND (II) THE CONSUMMATION OF ANY SUCH SETTLEMENT SHALL BE SUBJECT TO
THE PRIOR WRITTEN CONSENT OF THE PURCHASER UNLESS SUCH SETTLEMENT INCLUDES A
COMPLETE RELEASE WITH RESPECT TO THE EARNOUT OBLIGATIONS OF THE EARNOUT OBLIGORS
BY THE OLD AIRCAST SELLERS.
THE PURCHASER ACKNOWLEDGES THAT, NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS SECTION 1.6, THE SELLERS SHALL ONLY BE
OBLIGATED TO NEGOTIATE IN GOOD FAITH TO PURSUE A SETTLEMENT OF THE EARNOUT
OBLIGATIONS, BUT THERE CAN BE NO ASSURANCE THAT SUCH A SETTLEMENT WILL BE
REACHED, AND EXCEPT FOR THEIR PAYMENT OBLIGATIONS UNDER THIS SECTION 1.6, THE
SELLERS WILL HAVE NO LIABILITY TO THE PURCHASER OR ANY OTHER PERSON FOR THE
FAILURE TO REACH SUCH A SETTLEMENT.
DURING SUCH SETTLEMENT NEGOTIATION PROCESS,
THE STOCKHOLDER REPRESENTATIVE WILL KEEP THE PURCHASER INFORMED, ON A REASONABLY
PROMPT BASIS AND IN REASONABLE DETAIL, CONCERNING THE PROGRESS OF SUCH
NEGOTIATIONS, INCLUDING: (X) PROVIDING THE PURCHASER WITH COPIES OF ANY DRAFT
TERM SHEETS, SETTLEMENT AGREEMENTS AND OTHER DOCUMENTS BEING CIRCULATED AMONG
THE STOCKHOLDER REPRESENTATIVE AND ITS REPRESENTATIVES, ON THE ONE HAND, AND THE
OLD AIRCAST SELLERS AND THEIR REPRESENTATIVES, ON THE OTHER HAND; (Y) PROVIDING
REASONABLE ADVANCE NOTICE TO THE PURCHASER (TO THE EXTENT THAT REASONABLE
ADVANCE NOTICE HAS BEEN PROVIDED TO THE STOCKHOLDER REPRESENTATIVE) OF ANY
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