SET FORTH IN SECTION 2.7(B)(II), AN AMOUNT IN
CASH (THE "DEFERRED CASH CONSIDERATION") EQUAL TO THE PRODUCT OF $500,000
MULTIPLIED BY A FRACTION, THE NUMERATOR OF WHICH IS NET SALES FOR FISCAL YEAR
2009 AND THE DENOMINATOR OF WHICH IS THE NET SALES TARGET; PROVIDED, HOWEVER,
THAT THE AMOUNT OF THE DEFERRED CASH CONSIDERATION SHALL NOT EXCEED $500,000.
(II)
WITHIN FORTY-FIVE (45) DAYS AFTER
DECEMBER 31, 2009, BUYER SHALL DELIVER TO SELLER A WRITTEN STATEMENT (THE
"PAYMENT STATEMENT"), INCLUDING SUPPORTING DOCUMENTATION, SETTING FORTH THE
AMOUNT OF NET SALES FOR FISCAL YEAR 2009.
THE PAYMENT STATEMENT SHALL BECOME
FINAL AND BINDING UPON BUYERS AND SELLER ON THE 15TH DAY FOLLOWING DELIVERY
THEREOF, UNLESS SELLER GIVES NOTICE OF DISAGREEMENT WITH THE PAYMENT STATEMENT
(A "DISPUTE NOTICE") TO BUYER PRIOR TO SUCH DATE.
ANY DISPUTE NOTICE SHALL
SPECIFY IN REASONABLE DETAIL THE NATURE OF ANY DISAGREEMENT SO ASSERTED.
IF A
DISPUTE NOTICE IS RECEIVED BY BUYER IN A TIMELY MANNER, THEN THE PAYMENT
STATEMENT SHALL BECOME FINAL AND BINDING UPON BUYERS AND SELLER ON THE EARLIER
OF (I) THE DATE BUYER AND SELLER RESOLVE IN WRITING ANY DIFFERENCES THEY HAVE
WITH RESPECT TO THE MATTERS SPECIFIED IN THE DISPUTE NOTICE AND (II) THE DATE
ANY DISPUTED MATTERS ARE FINALLY RESOLVED IN WRITING BY THE ACCOUNTING FIRM.
DURING THE 30-DAY PERIOD (THE "RESOLUTION PERIOD") FOLLOWING THE DELIVERY OF A
DISPUTE NOTICE, BUYER AND SELLER SHALL USE THEIR COMMERCIALLY REASONABLE EFFORTS
AND SEEK IN GOOD FAITH TO RESOLVE IN WRITING ANY DIFFERENCES THAT THEY MAY HAVE
WITH RESPECT TO THE MATTERS SPECIFIED IN THE DISPUTE NOTICE.
AT THE END OF THE
RESOLUTION PERIOD, BUYER AND SELLER SHALL SUBMIT TO AN INDEPENDENT ACCOUNTING
FIRM (THE "ACCOUNTING FIRM") FOR ARBITRATION, IN ACCORDANCE WITH THE STANDARDS
SET FORTH IN THIS SECTION 2.7(B), ONLY MATTERS THAT REMAIN IN DISPUTE AND WERE
PROPERLY INCLUDED IN THE NOTICE OF DISAGREEMENT IN ACCORDANCE WITH THIS
SECTION 2.7(B) AND ANY CLAIM OF CALCULATION-RELATED ERRORS.
THE ACCOUNTING FIRM
SHALL BE RSM MCGLADREY (WHICH THE PARTIES REPRESENT HAS NOT PROVIDED SERVICES TO
ANY OF THEM OR THEIR RESPECTIVE SUBSIDIARIES DURING THE PAST THREE YEARS) OR, IF
SUCH FIRM IS UNABLE OR UNWILLING TO ACT, SUCH OTHER INDEPENDENT PUBLIC
ACCOUNTING FIRM AS SHALL BE AGREED UPON BY BUYER AND SELLER IN WRITING.
BUYER
AND SELLER SHALL USE THEIR COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE
ACCOUNTING FIRM TO RENDER A WRITTEN DECISION RESOLVING THE MATTERS SUBMITTED TO
THE ACCOUNTING FIRM WITHIN THIRTY (30) DAYS OF THEIR DELIVERY OF SUCH
SUBMISSION.
THE ACCOUNTING FIRM SHALL DETERMINE NET SALES FOR FISCAL YEAR 2009
PURSUANT TO THIS SECTION 2.7(B) IN ACCORDANCE WITH GAAP AND THE PRINCIPLES,
POLICIES AND PRACTICES THAT WERE USED IN PREPARING THE BUSINESS FINANCIAL
STATEMENTS; PROVIDED, HOWEVER, THAT NO ADJUSTMENT SHALL BE MADE BY THE
ACCOUNTING FIRM IN FAVOR OF SELLER WITH RESPECT TO ANY ITEM THAT WAS NOT
INCLUDED IN SELLER'S DISPUTE NOTICE.
THE ACCOUNTING FIRM'S DECISION SHALL BE
BASED SOLELY ON WRITTEN SUBMISSIONS BY BUYER AND SELLER AND THEIR RESPECTIVE
REPRESENTATIVES AND BY REFERENCE TO