ENDED ON THE CALENDAR MONTH-END NEXT PRECEDING
THE CLOSING DATE (THE "TWELVE MONTH CALCULATION").
THE PURCHASER WILL USE ITS
COMMERCIALLY REASONABLE BEST EFFORTS TO DELIVER THE DRAFT TWELVE MONTH
CALCULATION PRIOR TO THE DATE THAT IS THIRTY (30) DAYS AFTER THE CLOSING DATE.
THE STOCKHOLDER REPRESENTATIVE SHALL HAVE FIFTEEN (15) DAYS TO REVIEW AND UPDATE
THE DRAFT TWELVE MONTH CALCULATION AND SHALL, AT OR BEFORE THE END OF THE
APPLICABLE REVIEW PERIOD, PROVIDE THE PURCHASER WITH ANY WRITTEN OBJECTIONS TO
THE PURCHASER'S DRAFT TWELVE MONTH CALCULATION, AND, IF APPLICABLE, WITH THE
STOCKHOLDER REPRESENTATIVE'S OWN CALCULATIONS OF "NET SALES" FOR SUCH 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 THE TWELVE MONTH CALCULATION.
IF
THE EARNOUT OBLIGATIONS ACCELERATE AS A RESULT OF THE CONSUMMATION OF THE STOCK
PURCHASE, THE SELLERS SHALL PAY TO AIRCAST INTERMEDIATE HOLDCO OR ITS
DESIGNEE(S) (ON BEHALF OF THE PURCHASER) THE AMOUNT OF THE EARNOUT OBLIGATIONS
SO ACCELERATED AT THE TIME THAT PAYMENT IS REQUIRED TO MADE BY THE EARNOUT
OBLIGORS TO THE OLD AIRCAST SELLERS.
(G)
TO THE EXTENT REASONABLY NECESSARY FOR ANY SETTLEMENT NEGOTIATIONS
RELATED TO THE EARNOUT OBLIGATIONS CONTINUING AFTER THE CLOSING OR FOR PURPOSES
RELATED TO THE PAYMENTS OR CALCULATIONS CONTEMPLATED BY SECTION 1.6(C) AND
SECTION 1.6(F), THE PURCHASER SHALL (AND SHALL CAUSE THE COMPANY AND THE COMPANY
SUBSIDIARIES TO) PROVIDE TO THE STOCKHOLDER REPRESENTATIVE AND ITS
REPRESENTATIVES REASONABLE ACCESS TO THE BOOKS AND RECORDS OF THE COMPANY AND
THE COMPANY SUBSIDIARIES REASONABLY RELATED TO THE CALCULATION OF "NET SALES" AS
DESCRIBED IN SECTION 1.6(B), AND MAKE AVAILABLE THE PERSONNEL, ACCOUNTANTS AND
OTHER ADVISORS OF THE COMPANY AND THE COMPANY SUBSIDIARIES (AND THEIR RESPECTIVE
BOOKS AND RECORDS REASONABLY RELATED TO THE CALCULATION OF "NET SALES" AS
DESCRIBED IN SECTION 1.6(B), EXCEPT TO THE EXTENT SUBJECT TO ATTORNEY-CLIENT
PRIVILEGE THAT WOULD BE WAIVED BY SUCH PROVISION), IN EACH CASE (I) AS IS
REASONABLY REQUESTED BY THE STOCKHOLDER REPRESENTATIVE IN CONNECTION WITH THE
SETTLEMENT NEGOTIATION PROCESS, (II) AT THE LOCATION OF THE
8
EARNOUT OBLIGORS, AS APPLICABLE, (III) DURING NORMAL BUSINESS HOURS, (IV) UPON
REASONABLE ADVANCE NOTICE AND (V) SUBJECT TO ANY REASONABLE CONFIDENTIALITY AND
SECURITIES TRADING RESTRICTIONS IMPOSED BY THE PURCHASER AND DELIVERED TO THE
STOCKHOLDER REPRESENTATIVE IN WRITING A REASONABLE AMOUNT OF TIME PRIOR TO THE
PROVISION OF SUCH ACCESS.
(H)
ALL REFERENCES IN THIS SECTION 1.6 TO THE COMPANY AND THE COMPANY
SUBSIDIARIES SHALL ALSO APPLY TO ANY SUCCESSOR TO, OR ASSIGNEE OF, THE COMPANY
OR ANY COMPANY SUBSIDIARY.
(I)
ANY AMOUNT PAID BY THE SELLERS PURSUANT TO THIS SECTION 1.6 SHALL
BE TREATED FOR ALL TAX PURPOSES AS A REDUCTION TO THE PURCHASE PRICE.
(J)
EXCEPT AS SET FORTH IN SECTION 1.2(B)(II) AND THIS SECTION 1.6,
AND EXCEPT FOR BREACHES OF SECTION 1.8 OF THE AIRCAST ASSET PURCHASE AGREEMENT
OCCURRING PRIOR TO THE CLOSING,