any payment under Section 2.8(a) or 2.8(b), and in
addition to any other set off rights specifically provided for in this
Agreement, to reduce the amount of any payments otherwise owing pursuant to
either Section 2.8(a) or Section 2.8(b) by (a) the absolute value of any
Aggregate Divisional EBITDA Loss and (b) if pursuant to Section 2.5 (i) the Base
Price was less than $25,500,000 and (ii) the sum of
(A) Closing Net Asset
Adjustment plus (B) the Wilhelmina Expense Amount yields a negative number, an
amount equal to the lesser of (A) $25,500,000 minus the Base Price or (B) the
absolute value of the sum of (A) Closing Net Asset Adjustment plus
(B) Wilhelmina Expense Amount.
An "Aggregate Divisional EBITDA Loss" shall mean
(a) an aggregate WAM EBITDA loss for the twelve months periods beginning on the
Closing Date, the first anniversary of the Closing and the second anniversary of
the Closing Date, respectively, if any, and/or (b) an aggregate Wilhelmina Miami
EBITDA loss for the twelve months periods beginning on the Closing Date, the
first anniversary of the Closing and the second anniversary of the Closing Date,
respectively, if any (it being understood that an aggregate loss in each case
shall be determined by summing EBITDA, including negative EBITDA, for all three
periods).
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(d)
After giving effect to any reduction(s) of Earnout Payments
pursuant to Section 2.8(c), Purchaser shall pay any positive WAM Earnout and/or
the Miami Earnout to the applicable Sellers, pro rata for their pre-closing
ownership interests in WAM and Wilhelmina Miami, respectively, within the later
of (A) 30 calendar days following Purchaser's delivery of the calculations with
respect to the WAM Earnout pursuant to Section 2.8(a)(i) and the Miami Earnout
pursuant to Section 2.8(b)(i) (whichever is delivered later) or (B) 10 (ten)
days following the resolution, in accordance with Section 2.9 of this Agreement,
of all objections raised in compliance with Section 2.8(a)(i) or Section
2.8(b)(i) above.
(e)
In the event that either (i) Aggregate Divisional EBITDA Losses
exist for both WAM and Wilhelmina Miami (the sum of such Aggregate Divisional
EBITDA Losses, the "Total Divisional Loss") or (ii) the amount an Aggregate
Divisional EBITDA Loss exceeds the amount of any Earnout Payment (prior to any
adjustment made under Section 2.8(c))
(an "Excess Divisional Loss"), then
Purchaser shall have the right to promptly repurchase for $.0001 (one
one-hundredths of one penny) per share a number of Seller Restricted Shares
(valued at the greater of (i) the prevailing Market Value as of the date of
repurchase and (ii) NCEH Book Value Per Share) equal to the Total Divisional
Loss or the Excess Divisional Loss, as applicable; provided that in no event
shall Purchaser be permitted to repurchase shares hereunder having a value
greater than the lesser of (a) $1,000,000 and, if a repurchase of Seller
Restricted Shares by Purchaser occurred pursuant to Section 2.6 hereof, (b) the
value (measured at the greater of (1) the Market Value of Purchaser Stock as of
the date