Common use of Calculation of Earn-Out Payments Clause in Contracts

Calculation of Earn-Out Payments. (a) As promptly as practicable, but no later than 30 days, after the end of an Earn-out Year, Purchaser will cause to be prepared and delivered to the Sellers a certificate (each, an “Earn-out Certificate”) setting forth in reasonable detail Purchaser’s calculation of Cobalt Revenue for such Earn-out Year. If the Sellers disagree with Purchaser’s calculation of Cobalt Revenue for such Earn-out Year, the Sellers may, within 30 days after delivery of the Earn-out Certificate, deliver a notice to Purchaser disagreeing with such calculation. Any such notice of disagreement shall specify those items or amounts as to which the Sellers disagree, and the Sellers shall be deemed to have agreed with all other items and amounts contained in the Earn-out Certificate. If the Sellers do not so notify Purchaser of a dispute with respect to the Earn-out Certificate within such 30-day period, the Earn-out Certificate will be final, conclusive and binding on the parties. (b) If a notice of disagreement shall be duly delivered pursuant to Section 2.01(a), Purchaser and the Sellers shall negotiate in good faith to resolve such dispute. If Purchaser and the Sellers, notwithstanding such good faith effort, fail to resolve such dispute within 15 days after the Sellers advise Purchaser of their objections, then Purchaser and the Sellers jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable, and in any event not more than 15 days thereafter, Purchaser and the Sellers shall each prepare and submit a presentation detailing such party’s complete statement of proposed resolution of the dispute to the Accounting Firm. As soon as practicable thereafter, Purchaser and the Sellers shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and the Sellers. The parties shall share the expenses of the Accounting Firm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the parties. (c) For purposes of complying with the terms set forth in this Section 2.01 of Exhibit A, each party shall cooperate with and make available to the other party and its representatives all information, records, data and working papers, and shall permit access to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis of the Earn-out Certificate and the resolution of any disputes thereunder (subject to reasonable confidentiality restrictions and the provision of such assurances, releases, indemnities or other agreements as accountants may customarily require in such circumstances).

Calculation of Earn-Out Payments. (a) As promptly as practicableDuring the Earn-Out Period, but Calavo shall provide to the Sellers’ Representative, at Calavo’s expense, no later than the monthly meeting of the Board of Directors of Calavo (which in no event shall be later than 30 days, days after the end of an each calendar month), monthly statements providing in reasonable detail information regarding the operation of the Business and the EBITDA and Revenues achieved by the Business for the twelve-months ended with the prior calendar month and the twelve-months ended with the two months immediately preceding such month, together with any other information reasonably necessary to permit the Sellers’ Representative to assess progress toward the achievement of the Earn-out Year, Purchaser will cause to be prepared Out Triggers and delivered to the Sellers a certificate Benchmark (each, an “Earn-out CertificateOut Statement”) setting forth in reasonable detail Purchaser’s calculation of Cobalt Revenue for such ). Each Earn-out YearOut Statement will be prepared in accordance with Financial Statement Principles. Purchaser shall maintain such accounting records, ledgers, books and other documents as may be necessary to prepare such statements and make such records, ledgers, books and other documents available to the Sellers’ Representative upon his request after reasonable notice and during normal business hours. (b) In the event of any objection by the Sellers’ Representative with respect to the determination of the EBITDA, Revenues or the Earn-Out Payment payable for the Earn-Out Period, the Sellers’ Representative shall give written notice to Calavo of the existence of such objection and the Parties will attempt to resolve any disputed items in good faith for a period of 30 days from the receipt of such written notice. If the Sellers disagree with Purchaser’s calculation of Cobalt Revenue for such Earn-out Year, the Sellers may, Sellers’ Representative does not deliver a written objection within 30 days after delivery his receipt of an Earn-Out Statement, then the calculation of the EBITDA, Revenues and the Earn-out Certificate, deliver a notice to Purchaser disagreeing with such calculation. Any such notice of disagreement shall specify those items or amounts Out Payment payable for the Earn-Out Period as to which set forth in the Sellers disagree, and the Sellers applicable Earn-Out Statement shall be deemed to have agreed been accepted. (c) Failing resolution pursuant to Section 2.15(b) within 30 days after receipt of the written notice of objection from the Sellers’ Representative, then either Calavo or the Sellers’ Representative may submit any unresolved disputed items with all other items and amounts contained in respect to the amount of EBITDA, Revenues or the Earn-out CertificateOut Payment payable for the Earn-Out Period for binding resolution to the Independent Accounting Firm. If Calavo and the Sellers do Sellers’ Representative shall direct the Independent Accounting Firm to, within 30 days following such submission, resolve the unresolved objections and such resolution shall be final and binding on all Parties hereto. (d) Each of Calavo and the Sellers’ Representative shall submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 10 days after the date of the engagement of the Independent Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions on the unresolved objections. Each of Calavo and the Sellers’ Representative may (but shall not so notify Purchaser be required to) submit to the Independent Accounting Firm (with a copy delivered to the other on the same day), within 20 days after the date of the engagement of the Independent Accounting Firm, a dispute memorandum responding to the initial memorandum submitted to the Independent Accounting Firm by the other Party. Unless requested by the Independent Accounting Firm in writing, no Party hereto may present any additional information or arguments to the Independent Accounting Firm, either orally or in writing. (e) Within 30 days after the date of its engagement hereunder, the Independent Accounting Firm shall issue a written ruling which shall include a revised Earn-Out Statement as adjusted (i) pursuant to any resolutions to objections agreed upon by Calavo and the Sellers’ Representative and (ii) pursuant to the Independent Accounting Firm’s resolution of the unresolved objections. The Independent Accounting Firm shall review only those matters specified in the unresolved objections and shall make no changes to the Earn-Out Statement, except as are required to resolve the unresolved objections. The Earn-Out Statement provided by the Independent Accounting Firm pursuant to this Section 2.15 shall be deemed to be the final Earn-Out Statement and it shall be final and binding on all Parties hereto. The Parties agree that the procedure set forth in this Section 2.15 for resolving disputes with respect to the Earn-out Certificate within Out Statement shall be the sole and exclusive method for resolving any such 30-day perioddisputes. The Independent Accounting Firm’s determination may be enforced in any court of competent jurisdiction, but the Earn-out Certificate will substance of the Independent Accounting Firm’s determination shall not be final, conclusive and binding on the partiessubject to review in any such proceeding. (bf) If a notice of disagreement shall be duly delivered pursuant to Section 2.01(a)Calavo, Purchaser and on the Sellers shall negotiate in good faith to resolve such dispute. If Purchaser one hand, and the Sellers, notwithstanding such good faith efforton the other hand, fail to resolve such dispute within 15 days after the Sellers advise Purchaser of their objections, then Purchaser and the Sellers jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable, and in any event not more than 15 days thereafter, Purchaser and the Sellers shall each prepare and submit a presentation detailing such party’s complete statement of proposed resolution be responsible for one-half of the dispute to the Accounting Firm. As soon as practicable thereafter, Purchaser fees and the Sellers shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and the Sellers. The parties shall share the expenses of the Independent Accounting Firm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the partiesFirm. (cg) For purposes After the Closing, upon reasonable written notice, Purchaser shall furnish or cause to be furnished to the Sellers’ Representative access, during normal business hours, to the Books and Records of complying Surviving RFG for any reasonable business purpose. The Sellers’ Representative acknowledges that receipt of (i) the Earn-Out Statements, together with any supporting documentation, and any information which may be gained as a result of the terms set forth access contemplated by such Section 2.15, to the extent not already disclosed to the public, may constitute receipt of confidential and/or material, non-public information (the “Earn-Out Statement Confidential Information”) concerning Purchaser. In addition, the Sellers’ Representative acknowledges that he and the other Sellers are prohibited from (i) purchasing or selling Securities of Calavo until 48 hours after such Earn-Out Statement Confidential Information (or financial information of the Purchaser covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public and (ii) communicating such Earn-Out Statement Confidential Information to any other Person under circumstances in which it is reasonably foreseeable that such Person will purchase or sell Securities of Calavo until such Earn-Out Statement Confidential Information (or financial information of Calavo covering the relevant time period to which the Earn-Out Statement Confidential Information relates) is disclosed to the public. In addition, the Sellers’ Representative shall cause any Person (including any of the Sellers’ Representative’s officers, employees, directors, managers, advisors, agents, attorneys, accountants or Representatives) receiving access to Earn-Out Statement Confidential Information on behalf of the Sellers’ Representative to keep such Earn-Out Statement Confidential Information confidential and not disclose any such Earn-Out Statement Confidential Information to others. Notwithstanding anything in this Section 2.01 of Exhibit A, each party shall cooperate with and make available Agreement to the contrary, the Sellers’ Representative shall be entitled to disclose Earn-Out Statement Confidential Information (i) if requested or required by law, regulation or legal or regulatory process (in which case, prior to such disclosure the Sellers’ Representative will give the Purchaser prior written notice and an opportunity to obtain, at the Purchasers’ sole cost and expense, a protective order or other party and its representatives all informationappropriate remedy against such disclosure; in the event such protective order or other remedy is not obtained, records, data and working papers, and shall permit access the Sellers’ Representative will use commercially reasonable efforts to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis disclose only that portion of the Earn-out Certificate Out Statement Confidential Information which is legally required to be disclosed and to ensure that all Earn-Out Statement Confidential Information that is so disclosed will be accorded confidential treatment, in each case at the resolution of any disputes thereunder Purchasers’ sole cost and expense) and (subject ii) to reasonable confidentiality restrictions and the provision of such assurances, releases, indemnities or other agreements as accountants may customarily require in such circumstances)extent necessary to enforce its rights under this Agreement.

Calculation of Earn-Out Payments. (a) As promptly as practicable, but no later than 30 days, after the end of an Earn-out Year, Purchaser will cause to be prepared and delivered to the Sellers a certificate (each, an “Earn-out Certificate”) setting forth in reasonable detail Purchaser’s calculation of Cobalt Revenue for such Earn-out Year. If the Sellers disagree with Purchaser’s calculation of Cobalt Revenue for such Earn-out Year, the Sellers may, within 30 days after delivery of the Earn-out Certificate, deliver a notice to Purchaser disagreeing with such calculation. Any such notice of disagreement shall specify those items or amounts as to which the Sellers disagree, and the Sellers shall be deemed to have agreed with all other items and amounts contained in the Earn-out Certificate. If the Sellers do not so notify Purchaser of a dispute with respect to the Earn-out Certificate within such 30-day period, the Earn-out Certificate will be final, conclusive and binding on the parties. (b) If a notice of disagreement shall be duly delivered pursuant to Section 2.01(a), Purchaser and the Sellers shall negotiate in good faith to resolve such dispute. If Purchaser and the Sellers, notwithstanding such good faith effort, fail to resolve such dispute within 15 days after the Sellers advise Purchaser of their objections, then Purchaser and the Sellers jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable, and in any event not more than 15 days thereafter, Purchaser and the Sellers shall each prepare and submit a presentation detailing such party’s complete statement of proposed resolution of the dispute to the Accounting Firm. As soon as practicable thereafter, Purchaser and the Sellers shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and the Sellers. The parties shall share the expenses of the Accounting Firm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the parties. (c) For purposes of complying with the terms set forth in this Section 2.01 of Exhibit A, each party shall cooperate with and make available to the other party and its representatives all information, records, data and working papers, and shall permit access to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis of the Earn-out Certificate and the resolution of any disputes thereunder (subject to CLI-2060753v9 reasonable confidentiality restrictions and the provision of such assurances, releases, indemnities or other agreements as accountants may customarily require in such circumstances).

Calculation of Earn-Out Payments. The determination of the Earn-out Payments, if any, to be paid pursuant to Section 3.2 shall be made pursuant to the following provisions: (a) As promptly as practicable, but no No later than 30 daysMarch 31, after the end of an Earn-out Year2009 and March 31, Purchaser will 2010, respectively, Buyer shall in good faith prepare or cause to be prepared and delivered shall deliver to Holdings and the ESOP Trust a calculation of EBITDA for the years ending December 31, 2008 and December 31, 2009, respectively, as well as a calculation of the Adjusted EBITDA for the year ending December 31, 2008 and December 31, 2009, respectively (for each year, the “EBITDA Calculations”). Holdings, the ESOP Trust and their respective representatives shall be permitted to review the working papers of Buyer and of its certified public accountants related to the Sellers a certificate (eachEBITDA Calculations, an “Earn-out Certificate”) setting forth and shall have access during normal business hours upon reasonable notice to all relevant books and records and employees of the Business in reasonable detail Purchaser’s order to review the calculation of Cobalt Revenue for such Earn-out Year. If the Sellers disagree with Purchaser’s calculation of Cobalt Revenue for such Earn-out Year, the Sellers may, within 30 days after delivery of the Earn-out Certificate, deliver a notice to Purchaser disagreeing with such calculation. Any such notice of disagreement shall specify those items or amounts as to which the Sellers disagree, and the Sellers shall be deemed to have agreed with all other items and amounts contained in the Earn-out Certificate. If the Sellers do not so notify Purchaser of a dispute with respect to the Earn-out Certificate within such 30-day period, the Earn-out Certificate will be final, conclusive and binding on the partiesEBITDA Calculations. (b) If Holdings and the ESOP Trust will have a period of sixty days (60) following the delivery of the EBITDA Calculations for the years ending December 31, 2008 and December 31, 2009, as the case may be, to notify Buyer of any disagreements with such EBITDA Calculations. Any such notice of disagreement shall be duly delivered pursuant accompanied by supporting documentation containing reasonable detail. Failure to Section 2.01(a)notify Buyer within such 60-day period shall be deemed acceptance of such EBITDA Calculations. In the event Holdings and/or the ESOP Trust timely notifies Buyer of any disagreement, Purchaser each of Holdings, the ESOP Trust and the Sellers shall negotiate Buyer agrees that it will attempt in good faith to resolve such disputedisagreement. If Purchaser and within sixty (60) days after delivery to Buyer of the Sellersnotification by Holdings and/or the ESOP Trust of a disagreement, notwithstanding such good faith effort, fail the parties are unable to resolve such dispute within 15 days after disagreement, either Holdings and/or the Sellers advise Purchaser ESOP Trust, on the one hand, or Buyer, on the other hand, shall have the right to submit the determination of their objectionssuch matters to the Independent Auditor whose decision shall be delivered to Buyer, then Purchaser Holdings and the Sellers jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable, and in any event not more than 15 ESOP Trust within sixty (60) days thereafter, Purchaser and the Sellers shall each prepare and submit a presentation detailing such party’s complete statement of proposed resolution of the dispute submission to the Accounting Firm. As soon as practicable thereafter, Purchaser Independent Auditor and the Sellers shall cause the Accounting Firm to choose one of the parties’ positions based solely upon the presentations by Purchaser and the Sellers. The parties shall share the expenses of the Accounting Firm equally. All determinations made by the Accounting Firm will be final, conclusive and binding on the parties. The cost of the Independent Auditor shall be paid by the party whose aggregate estimate of the disputed amount or amounts, as the case may be, differs most greatly from the determination of the Independent Auditor. (c) For purposes Any cash payment to be made pursuant to Section 3.3 shall be paid within five (5) Business Days of complying with the terms set forth in this Section 2.01 final determination of Exhibit A, each party such amount by wire transfer of immediately available funds. Any such payment shall cooperate with and make available be made to the other party and its representatives all information, records, data and working papers, and shall permit access to its facilities and personnel, such account or accounts as may be reasonably designated by Holdings at least two (2) Business Days prior to the date that such payment is to be made. (d) For the purpose of calculating Adjusted EBITDA to determine the Earn-Out Payments, (i) there shall not be any allocation of corporate overhead to the Business without the prior written consent of Holdings (which shall not be unreasonably withheld or delayed) other than for items required to bring the Company into compliance with applicable laws; (ii) there shall not be any allocation of expenses in connection with Buyer’s compliance with the preparation Xxxxxxxx-Xxxxx Act of 2002 and analysis the rules and regulations promulgated thereunder; (iii) the expenses related to insurance coverage of the Business provided under the Buyer’s insurance programs shall not exceed the actual costs for such benefits in 2007 except for inflationary cost increases; (iv) with respect to calculating the matching component expense for the 401(k) plan, the Business shall recognize an amount equal to the annualized 2008 matching component expense of the 401(k) Component, plus 50% of the incremental annualized expense, if any, incurred by Buyer during the respective fiscal year relating to the matching component of the 401(k) Component for employees of the Business after the Closing; (v) there shall not be any allocation of expenses incurred by any party in connection with this Agreement, including independent auditor fees pursuant to Section 3.1, attorneys’ fees or similar expenses, provided, however, that this clause (v) shall not apply to the liabilities of any underlying claims; (vi) except with the prior approval of Holdings, there shall not be any allocation of expenses or accruals in connection with any change in the organization, maintenance, operation, actuarial reserve methods or policies, or capitalization, of Jamestown, other than to comply with any CIMA statutory regulations or requirements applicable to the operation of Jamestown as conducted on the Closing Date; (vii) there shall not be any allocation of expenses in connection with any severance payment or termination payment to Xxx Xxxxxx, Xxxx Xxxxxxxx or Xxxxxxx Xxxxxxxx pursuant to any Employment Agreement with Buyer; and (viii) any amounts excluded from the calculation of Earn-out Certificate and Out Payments pursuant to the resolution last sentence of any disputes thereunder (subject to reasonable confidentiality restrictions and Section 9.2 hereof shall be excluded from the provision calculation of such assurances, releases, indemnities or other agreements as accountants may customarily require in such circumstances)Earn-Out Payments.