Common use of Contingent Consideration Clause in Contracts

Contingent Consideration. (a) Following the Closing, and as additional consideration for the Merger and the other transactions contemplated by this Agreement, within ten (10) Business Days after the occurrence of a Triggering Event that occurs before the fifth year anniversary of the Closing Date with respect to Section 3.03(a)(i), before the seventh year anniversary of the Closing Date with respect to Section 3.03(a)(ii), and before the tenth year anniversary of the Closing Date with respect to Section 3.03(a)(iii), (in each case, as applicable to such clause, the “Contingent Consideration Period”), each Contingent Consideration Eligible Company Equityholder (in accordance with its respective Contingent Consideration Pro Rata Share) is eligible to receive the following shares of Adara Class E Common Stock, as applicable (which shall be equitably adjusted to reflect stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to the Adara Class E Common Stock occurring on or after the Closing and prior to the date of such issuance, the “Contingent Consideration Shares”): (i) Upon the occurrence of Triggering Event I prior to the fifth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; (ii) Upon the occurrence of Triggering Event II prior to the seventh year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; and (iii) Upon the occurrence of Triggering Event III prior to the tenth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares. For the avoidance of doubt, the Contingent Consideration Eligible Company Equityholders shall be entitled to receive Contingent Consideration Shares upon the occurrence of each Triggering Event during the applicable Contingent Consideration Period; provided, however, that in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive Contingent Consideration Share after the tenth year anniversary of the Closing; provided, further, that each Triggering Event shall only occur once, if at all, and in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive an aggregate of more than 60,000,000 Contingent Consideration Shares; provided, further, that Triggering Event I, Triggering Event II and Triggering Event III may be achieved at the same time or over the same overlapping Trading Days. (b) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Adara Class E Common Stock shall be issued in respect of Contingent Consideration Shares and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Adara Class E Common Stock. In lieu of the issuance of any such fractional shares, the Exchange Agent shall round up or down to the nearest whole share of Adara Class E Common Stock, as applicable, with a fraction of 0.5 or more rounded up. No cash settlements shall be made with respect to fractional shares eliminated by rounding.

Contingent Consideration. (a) Following the Closing, Closing and as additional consideration hereunder, former holders of shares of Company Capital Stock (excluding holders of Cancelled Shares and Dissenting Shares), Vested Company Options formerly held by Non-Continuing Employees, Company RSUs and Company Warrants will be entitled to an additional payment if (but only if) Eligible Revenue for the Merger and the other transactions contemplated by this Agreementcalendar year ended December 31, within ten 2021 (10) Business Days after the occurrence of a Triggering Event that occurs before the fifth year anniversary of the Closing Date with respect as finally determined pursuant to Section 3.03(a)(i2.11(b), before the seventh year anniversary of the Closing Date with respect to Section 3.03(a)(ii), and before the tenth year anniversary of the Closing Date with respect to Section 3.03(a)(iii), ) is greater than $44,000,000 (in each case, as applicable to such clauseevent, the “Contingent Consideration PeriodEarnout Event”), each Contingent Consideration Eligible Company Equityholder (in accordance with its respective Contingent Consideration Pro Rata Share) is eligible to receive the following shares of Adara Class E Common Stock, as applicable (which shall be equitably adjusted to reflect stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to the Adara Class E Common Stock occurring on or after the Closing and prior to the date of such issuance, the “Contingent Consideration Shares”): (i) Upon the occurrence of Triggering Event I prior to the fifth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; (ii) Upon the occurrence of Triggering Event II prior to the seventh year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; and (iii) Upon the occurrence of Triggering Event III prior to the tenth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares. For the avoidance of doubt, in the event that Eligible Revenue for the calendar year ended December 31, 2021 is determined to be equal to or less than $44,000,000, then Parent will have no obligation to make any additional payment despite anything else set forth herein. (b) Parent will use good faith efforts to determine the actual amount of Eligible Revenue for the calendar year ended December 31, 2021 (the “Measurement Date”) as promptly as possible following the Measurement Date (but in any event within sixty (60) days of the Measurement Date). Any disputes with respect to the calculation of Eligible Revenue or payment of Contingent Consideration Eligible Company Equityholders shall be entitled handled in the same manner as set forth in Section 2.9(b), mutatis mutandis. (c) Notwithstanding anything to receive Contingent Consideration Shares the contrary set forth herein, as a condition to Parent’s obligation to pay the additional consideration upon the occurrence of each Triggering the Earnout Event during (the “Contingent Consideration”), if and when any such Contingent Consideration becomes due (taking into account any netting of the Financial Advisor Contingent Fee pursuant to Section 2.11(g) (if any) and retention of Contingent Consideration pursuant to Section 2.11(h) (if applicable): (i) the Stockholder Representative shall first deliver to Parent an updated Allocation Schedule setting forth the applicable Per Share Contingent Consideration PeriodAmount payable to each applicable Company Stockholder, Company Warrantholder, Company Vested Optionholder and Company RSU Holder and Parent shall pay the aggregate Per Share Contingent Consideration Amount in accordance with the updated Allocation Schedule within thirty (30) days of the Stockholder Representative delivering the updated Allocation Schedule to Parent; provided, however, in the event that in no event shall any amount of the Financial Advisor Contingent Fee is netted out of such payments or Contingent Consideration Eligible Company Equityholders be entitled is retained pursuant to receive Contingent Consideration Share after Section 2.11(h), the tenth year anniversary of updated Allocation Schedule will specify the Closingamounts netted out or retained from each such person on a holder by holder basis; provided, further, that the aggregate shares of Parent Common Stock payable to each Triggering Event applicable Company Stockholder, Company Warrantholder, Company Vested Optionholder and Company RSU Holder in respect of the Contingent Consideration shall only occur once, if at allbe rounded down to the nearest whole share number, and in no event shall the aggregate number of shares of Parent Common Stock payable under this Section 2.11 exceed the Aggregate Contingent Stock Consideration; and (ii) Parent must have received an invoice for the Financial Advisor Contingent Fee. (d) During the period between the Closing and the Measurement Date Parent and any of its Affiliates (including the Surviving Corporation) shall: (i) not take any action or omission with the primary purpose of avoiding its obligation to pay the Contingent Consideration, including any actions designed to shift Eligible Revenue away from the Surviving Corporation to another Subsidiary of Parent for the purpose of avoiding the obligation to pay the Contingent Consideration; (ii) maintain or provide a marketing staff supporting the marketing of Company’s products that is reasonably comparable in size to the marketing staff currently maintained by the Company (taking into account any marketing personnel of Parent or its Affiliates who support the marketing of the Company products following the Closing); (iii) take the actions set forth in the Marketing Plan; and (iv) refrain from assigning any employee or professionals (including the Key Employees and Critical Employees) of the Company material job duties for Parent or its Affiliates (other than the Company) if doing so would interfere with such employee’s ability to continue to perform his or her services to the Company in a manner that would reasonably be expected to prevent the Company from achieving the Earnout Event; however, none of the foregoing provisions shall require Parent or its Affiliates to take any action or omission in violation of applicable Law. The Stockholder Representative will promptly deliver written notice of any breach of this Section 2.11(d) to Parent and, if curable, Parent will have 20 days from the date that Parent is notified of such breach to cure such breach. Notwithstanding anything else in this Agreement, the parties hereto further agree that the Stockholder Representative will be permitted to exercise any right, bring any claim or commence any proceeding against Parent or the Surviving Corporation in connection with a breach of this Section 2.11(d) if (but only if) the Stockholder Representative has the prior written consent of the Stockholder Representative Group. (e) So long as any obligation remains outstanding with respect to the Contingent Consideration, in the event that Parent undergoes a Change of Control, or after a Change of Control of Parent, any of its respective successors, assignees or transferees undergoes a subsequent Change of Control, then, and in each such case, Parent shall either (i) ensure that (A) each such successor, assignee or transferee of Parent or such assets agrees to assume all obligations of Parent, including the obligations with respect to the Contingent Consideration Eligible Company Equityholders be set forth in this Agreement, and (B) has the capabilities, financial and otherwise to do so, or (ii) Parent shall agree to remain subject to its obligations hereunder, including with respect to the Contingent Consideration. In the event of an assignment by Parent of this Agreement to any of its Affiliates, Parent shall agree to remain liable for the performance by each such assignee of all obligations, including with respect to the Contingent Consideration. (f) Subject to the limitations set forth in Article VIII, Parent shall have the right (without duplication) to set-off any Contingent Consideration against any Losses for which Parent is entitled to receive be indemnified under Article VIII, upon the terms and conditions set forth in this Agreement. (g) Promptly following receipt of an aggregate of more than 60,000,000 invoice for the Financial Advisor Contingent Consideration SharesFee, Parent will cause such amount to be paid in full; provided, further, that Triggering Event I, Triggering Event II the Stockholder Representative will have an opportunity to review and Triggering Event III may be achieved at provide Parent with any comments on such invoice before such payment is made. Substantially concurrently with the same time or over payment of the same overlapping Trading Days. Financial Advisor Contingent Fee (b) Notwithstanding anything but subject to the contrary contained hereinnext sentence), no certificates or scrip representing fractional shares Parent and the Stockholder Representative shall deliver a joint written instruction, duly executed by each of Adara Class E Common Stock shall be issued in respect Parent and the Stockholder Representative to the Escrow Agent directing the Escrow Agent to transfer and release to Parent an aggregate amount of Other Indemnity Escrow Cash equal to the amount of the Financial Advisor Contingent Consideration Shares and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Adara Class E Common StockFee. In lieu of the issuance of any event that Other Indemnity Escrow Cash is insufficient to satisfy the Financial Advisor Contingent Fee in full or Parent otherwise determines in its discretion not to seek recovery from the Other Indemnity Escrow Fund for the Financial Advisor Contingent Fee, such fractional shares, the Exchange Agent shall round up shortfall or down to the nearest whole share of Adara Class E Common Stockunreimbursed amount, as applicable, will be netted out of the Per Share Contingent Consideration Amount payable to each Company Stockholder, Company Warrantholder, Company Vested Optionholder and Company RSU Holder on a proportionate basis. (h) In the event that the matter specified in Section 8.2(a)(x) is not finally resolved at the time Parent becomes obligated to pay the Contingent Consideration pursuant to Section 2.11(c), Parent will retain a portion of the Contingent Consideration with an aggregate value equal to the Contingent Holdback Amount from each applicable Company Stockholder, Company Warrantholder, Company Vested Optionholder and Company RSU Holder on a fraction pro rata basis in the same proportion as cash and shares (if any) that would have otherwise been payable to such persons pursuant to Section 2.11(c) but for the application of 0.5 this Section 2.11(h) (the “Contingent Holdback Cash and Shares”) to partially secure certain indemnification obligations under Article VIII. Anything to the contrary set forth herein notwithstanding, the parties agree that, despite the occurrence of the Earnout Event and Parent’s obligation to pay the Contingent Consideration, each applicable Company Stockholder, Company Warrantholder, Company Vested Optionholder and Company RSU Holder will be entitled to such person’s pro rata portion of the Contingent Holdback Cash Shares only if such shares of Parent Common Stock or more rounded up. No cash settlements shall be made cash, as applicable, are released to such persons in accordance with respect to fractional shares eliminated by roundingArticle VIII.

Contingent Consideration. (a) Following If the Closingrevenue recognized by the Acquiror and/or the Company from license, maintenance, training and as additional consideration service fees for the Merger and Company's products or services calculated under Section 1.14(c) (the other transactions contemplated by this Agreement, within ten (10"Company Revenue") Business Days after exceeds $10,000,000 for the occurrence of a Triggering Event that occurs before period from the fifth year Closing Date to the first anniversary of the Closing Date with respect to Section 3.03(a)(i(the "Measuring Period"), before then the seventh year anniversary Acquiror shall deliver to the Stockholders, as set forth in Section 1.14(d), contingent consideration in an amount (the "Contingent Consideration") equal to the sum of (i) 1.625 MULTIPLIED BY the amount by which the Company Revenue exceeds $10,000,000 (up to and including a maximum of $18,000,000 in Company Revenue) PLUS (ii) 1.5 MULTIPLIED BY the amount by which the Company Revenue exceeds $18,000,000 (up to and including a maximum of $21,000,000 in Company Revenue). For purposes of this Agreement, "Contingent Shares" means the number of shares of Acquiror Stock to be delivered in connection with the Contingent Consideration, which number shall equal the quotient obtained by DIVIDING (A) the Contingent Consideration by (B) the Closing Stock Price determined as of the Closing Date with respect to Section 3.03(a)(ii), and before third trading day preceding the tenth year anniversary date of payment of the Closing Date with respect to Section 3.03(a)(iii)Contingent Consideration. For purposes of this Agreement, (in each case, as applicable to such clause, the “"Contingent Consideration Period”), each Exchange Rate" means the number of shares of Acquiror Stock to be delivered in connection with the Contingent Consideration Eligible in respect of each share of Company Equityholder (in accordance with its respective Contingent Consideration Pro Rata Share) is eligible to receive the following shares of Adara Class E Common Capital Stock, as applicable (which shall be equitably adjusted to reflect stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect equal to the Adara Class E quotient obtained by DIVIDING (1) the number of Contingent Shares by (2) the Aggregate Common Stock occurring on or after Number. Notwithstanding the Closing and prior to the date of such issuanceforgoing, the “Contingent Consideration Shares”): (i) Upon the occurrence of Triggering Event I prior to the fifth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; (ii) Upon the occurrence of Triggering Event II prior to the seventh year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; and (iii) Upon the occurrence of Triggering Event III prior to the tenth year anniversary of the Closing, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares. For the avoidance of doubt, the Contingent Consideration Eligible Company Equityholders shall be entitled to receive Contingent Consideration Shares upon the occurrence of each Triggering Event during the applicable Contingent Consideration Period; provided, however, that in no event shall the number of Contingent Consideration Eligible Company Equityholders be entitled to receive Contingent Consideration Share after Shares together with the tenth year anniversary number of Closing Shares exceed 19.9% of the ClosingAcquiror Stock then outstanding; providedPROVIDED that if the number of Contingent Shares would cause such percentage to be exceeded, further, that each Triggering Event the Acquiror shall only occur once, if at all, issue the maximum permitted number of Contingent Shares and in no event shall pay the balance of the Contingent Consideration Eligible Company Equityholders be entitled in cash (the "Cash Contingent Consideration"); PROVIDED FURTHER that to receive an aggregate of more than 60,000,000 the extent any Contingent Consideration Shares; providedis paid, further, that Triggering Event I, Triggering Event II any and Triggering Event III may be achieved at the same time or over the same overlapping Trading Days. (b) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Adara Class E Common Stock shall be issued in respect of Contingent Consideration Shares and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Adara Class E Common Stock. In lieu of the issuance of any such fractional shares, the Exchange Agent shall round up or down to the nearest whole share of Adara Class E Common Stock, as applicable, with a fraction of 0.5 or more rounded up. No cash settlements shall be made all imputed interest with respect to fractional shares eliminated by roundingthe Contingent Consideration pursuant to Section 483 or Section 1274 of the Code shall be deemed paid, to the maximum extent possible, from such Cash Contingent Consideration.

Contingent Consideration. (a) Following the Closing, in addition to the consideration to be received pursuant to Section 2.1(vii) and as part of the overall Aggregate Consideration, the Company Stockholders shall be issued additional consideration shares of Redwoods Common Stock (the “Contingent Consideration” and such shares of Redwoods Common Stock, the “Contingent Consideration Shares”), as follows: (i) 2,000,000 Contingent Consideration Shares upon Redwoods achieving a closing price equal to or exceeding $12.50 for 10 trading days within a 20-day trading period in the first three years following Closing; (ii) 2,000,000 Contingent Consideration Shares upon Redwoods achieving a closing price equal to or exceeding $15.00 for 10 trading days within a 20-day trading period in the first three years following Closing; and (iii) 1,000,000 Contingent Consideration Shares upon Redwoods achieving a closing price equal to or exceeding $20.00 for 10 trading days within a 20-day trading period in the first five years following Closing. (b) Except as otherwise specified pursuant to Section 2.2(c), upon the satisfaction of the conditions for the Merger and the other transactions contemplated by this Agreementissuance of any Contingent Consideration Shares pursuant to Section 2.2(a), then within ten (10) Business Days after following the occurrence of a Triggering Event that occurs before the fifth year anniversary achievement of the Closing Date applicable conditions for the issuance of any Contingent Consideration Shares, Redwoods shall issue the applicable Contingent Consideration Shares to each Company Stockholder according to such Company Stockholder’s pro rata percentage as set forth on Section 2.2(a) of the Company Disclosure Schedules. (c) Following the Closing, if a Change of Control of Redwoods shall occur, then the conditions for the issuance of any Contingent Consideration that remains unissued as of immediately prior to the consummation of such Change of Control shall be deemed to have been achieved and any such Contingent Consideration shall immediately become payable and the Company Stockholders shall be entitled to receive such Contingent Consideration immediately prior to the consummation of such Change of Control. Any Contingent Consideration shall be payable to the Company Stockholders as specified on the Allocation Schedule. For the purposes of this Agreement, a “Change of Control” shall have been deemed to occur with respect to Section 3.03(a)(i)Redwoods upon: (i) the sale, before the seventh year anniversary lease, license, distribution, dividend or transfer, in a single transaction or a series of related transactions, of more than fifty percent (50%) of the Closing Date with respect to Section 3.03(a)(ii)assets of Redwoods and its Subsidiaries taken as a whole; or (ii) a merger, and before the tenth year anniversary consolidation or other business combination of Redwoods (or any Subsidiary or Subsidiaries that alone or together represent more than fifty percent (50%) of the Closing Date with respect to Section 3.03(a)(iii)consolidated business of Redwoods at that time) or any successor or other entity holding, directly or indirectly, fifty percent (50%) or more of all the assets of Redwoods and its Subsidiaries that results in each casethe stockholders of Redwoods (or such Subsidiary or Subsidiaries) or any successor or other entity holding, directly or indirectly, less than fifty percent (50%) of the assets of Redwoods and its Subsidiaries or the surviving entity thereof, as applicable to applicable, immediately following the consummation of such clause, the “transaction or series of related transactions. (d) The Contingent Consideration Period”), each Contingent Consideration Eligible Company Equityholder (in accordance with its respective Contingent Consideration Pro Rata Share) is eligible to receive the following shares of Adara Class E Common Stock, as applicable (which shall be equitably adjusted to reflect appropriately the effect of any stock splitssplit, reverse stock splitssplit, stock dividendsdividend (including any dividend or distribution of securities convertible into shares of Redwoods Common Stock), reorganizationsreorganization, recapitalizationsrecapitalization, reclassificationsreclassification, combination, exchange of shares or other like change or transaction with respect to the Adara Class E Redwoods Common Stock Stock, occurring on or after the Closing date hereof and prior to the date of time any such issuance, the “Contingent Consideration Shares”):is delivered to the Contingent Company Stockholders, if any. (e) The right of the Company Stockholders to receive the Contingent Consideration (i) Upon the occurrence of Triggering Event I prior to the fifth year anniversary of the Closingis solely a contractual right and will not be evidenced by a certificate and does not constitute a security or other instrument, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; (ii) Upon the occurrence of Triggering Event II prior may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than upon written notice to the seventh year anniversary of the ClosingRedwoods pursuant to a Permitted Transfer, a one-time issuance of an aggregate of 20,000,000 Contingent Consideration Shares; and and (iii) Upon does not give the occurrence Company Stockholders any right to receive interest payments. There is no guaranty or other assurance of Triggering Event III prior any kind that any Contingent Consideration will be payable hereunder (regardless of any projections, models, forecasts or any other financial data generated by, or provided to, the Company, Redwoods or their respective Affiliates or Representatives). For purposes of this Agreement, “Permitted Transfer” means (A) a transfer on death by will or intestacy, (B) a transfer by instrument to an inter vivos or testamentary trust for beneficiaries upon the tenth year anniversary death of the Closingtrustee, (C) a one-time issuance of transfer made pursuant to an aggregate of 20,000,000 Contingent Consideration Shares. For the avoidance of doubt, the Contingent Consideration Eligible Company Equityholders shall be entitled to receive Contingent Consideration Shares upon the occurrence of each Triggering Event during the applicable Contingent Consideration Period; provided, however, that in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive Contingent Consideration Share after the tenth year anniversary of the Closing; provided, further, that each Triggering Event shall only occur once, if at all, and in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive an aggregate of more than 60,000,000 Contingent Consideration Shares; provided, further, that Triggering Event I, Triggering Event II and Triggering Event III may be achieved at the same time or over the same overlapping Trading Days. (b) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Adara Class E Common Stock shall be issued in respect of Contingent Consideration Shares and such fractional share interests shall not entitle the owner thereof to vote or to any other rights order of a holder court of Adara Class E Common Stock. In lieu of the issuance of any competent jurisdiction (such fractional sharesas in connection with divorce, the Exchange Agent shall round up bankruptcy or down liquidation), (D) a transfer by a partnership or limited liability company through a distribution to the nearest whole share of Adara Class E Common Stockits partners or members, as applicable, with in each case without consideration, (E) a fraction transfer made by operation of 0.5 law (including a consolidation or more rounded up. No cash settlements shall be made with respect merger) or as pursuant to fractional shares eliminated the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity, (F) a transfer by roundinga Company Stockholder to one of its Affiliates after providing not less than ten (10) Business Days written notice to Redwoods and the Company, or (G) a transfer to any lender to a Company Stockholder, solely for purposes of creating a security interest therein or otherwise assigning as collateral security, or (G) a transfer permitted under the Lock-up Agreement or the Sponsor Support Agreement, as applicable.

Contingent Consideration. (a) If (i) the 2022 Notes are Refinanced and (ii) as of the last day of any month beginning with the month ending December 31, 2021 and ending on December 31, 2022 (the “Measurement Period”), the MLP has achieved a trailing twelve month Adjusted EBITDA (“TTM Adjusted EBITDA”) that is greater than or equal to $107.0 million (clauses (i) and (ii), the “Contingent Payment Conditions”), then Acquirer shall pay Parent $3,129,279.43 in the manner set forth in Section 2.04(d) (the “Contingent Consideration” and, together with the Base Consideration and the Deferred Consideration, the “Consideration”) in (x) cash in immediately available funds, (y) MLP Common Units or (z) a combination of cash and MLP Common Units. The form of Contingent Consideration to be delivered by Acquirer shall be determined by Acquirer in its sole discretion; provided, however, that the prior written consent of Parent (which may be withheld in its sole discretion) shall be required for an election to pay the Contingent Consideration in a combination of cash and MLP Common Units; provided further, that if Acquirer elects to fund all or a portion of the Contingent Consideration in MLP Common Units, such MLP Common Units shall be valued at a per unit price equal to the volume weighted daily average price of MLP Common Units, as reported on NASDAQ (or any applicable successor exchange), for the 20 trading days ending one trading day prior to the date on which Acquirer provides notice to Parent, in accordance with Section 2.04(d), of Acquirer’s intent to pay all or a portion of such Contingent Consideration in MLP Common Units (the “Calculation Period”). (b) Within 30 calendar days of the end of each calendar month during the Measurement Period, Acquirer shall deliver to Parent a statement (the “Adjusted EBITDA Statement”) setting forth the MLP’s TTM Adjusted EBITDA as of the end of such month, together with reasonable supporting documentation thereof. Acquirer agrees that it shall prepare each Adjusted EBITDA Statement in accordance with the illustrative calculation included on Schedule 1.2 using the same methodologies, practices, policies and judgments as were used in the MLP’s Financial Statements, except as otherwise provided in this Agreement, including Schedule 1.2. Following delivery of the ClosingAdjusted EBITDA Statement, Acquirer will cause the Compressco Entities to provide Parent the reasonable opportunity during normal business hours to examine any supporting schedules, analyses, workpapers and other underlying records or documentation that are in the Compressco Entities’ possession or control (collectively, the “Supporting Documentation”) as are reasonably necessary and appropriate for Parent to confirm or object to the calculation of the applicable TTM Adjusted EBITDA included in such Adjusted EBITDA Statement. Parent agrees to hold in confidence and not disclose to any Person the Adjusted EBITDA Statement and Supporting Documentation. The Adjusted EBITDA Statements and Supporting Documentation made available to Parent shall be used by Parent and/or its Representatives solely for the purpose of reviewing the calculations pursuant to this Section 2.04 and not for any other purpose. (c) Parent shall be deemed to have accepted the determinations set forth in each Adjusted EBITDA Statement, and as additional consideration each Adjusted EBITDA Statement shall be final and binding on the parties, unless Parent delivers to Acquirer not later than 30 calendar days after receipt of such Adjusted EBITDA Statement (the “Objection Period”) a written notice (a “Notice of Dispute”) listing in reasonable detail those items included in the determination of Adjusted EBITDA for the Merger applicable Measurement Period to which Parent takes exception and any proposed adjustment. If Parent and Acquirer are unable, within 30 calendar days after receipt by Acquirer of the Notice of Dispute, to determine the disputed exceptions, such disputed exceptions will be referred to BDO USA, LLP (or, if they are unable or unwilling to serve, another nationally recognized accounting firm not affiliated with Parent or Acquirer that is mutually selected by Parent and Acquirer) (as applicable, BDO USA, LLP or the firm selected by Parent and Acquirer is referred to as the “Accounting Arbitrator”). All matters not covered by the Notice of Dispute and those matters Acquirer and Parent resolve by written agreement following receipt of the Notice of Dispute shall be deemed to be final, binding and conclusive. The determination by the Accounting Arbitrator shall be final, binding and conclusive on Parent and Acquirer. Acquirer and Parent each shall provide their assertions regarding the remaining disputes in writing to the Accounting Arbitrator and to each other on the date or dates ordered by the Accounting Arbitrator. The Accounting Arbitrator’s determination shall be based solely on Section 2.04 and the definition of Adjusted EBITDA contained in this Agreement, including Schedule 1.2. Further, the Accounting Arbitrator’s determination shall not be based on any independent investigation. The fees, costs and expenses of the Accounting Arbitrator acting under this Section shall be borne one half by Acquirer and one half by Parent; provided that if the Accounting Arbitrator determines, and states in its report, that one party’s position is completely correct, then such party shall pay none of the fees, costs and expenses of the Accounting Arbitrator and the other transactions contemplated party shall pay all such fees, costs and expenses. The Accounting Arbitrator shall be instructed to render its determination as soon as reasonably possible (which the parties agree should not be later than sixty (60) calendar days following the day on which the disagreement is referred to the Accounting Arbitrator). Failure of the Accounting Arbitrator to adhere to this time limit shall not be a basis for challenging the Accounting Arbitrator’s determination. The Accounting Arbitrator shall conduct its determination activities in a manner wherein all materials submitted to it are held in confidence and shall not be disclosed to third parties. The parties agree that the Accounting Arbitrator’s determination shall be enforceable under the Federal Arbitration Act, Title 9 United States Code, and that judgment may be entered upon the determination of the Accounting Arbitrator in any court having jurisdiction over the party against which such determination is to be enforced. (d) If the Contingent Payment Conditions have either been satisfied or, in the sole discretion of Acquirer, waived, on or before the 26 month anniversary of the Closing Date, Acquirer shall pay Parent the Contingent Consideration on the 26 month Anniversary of the Closing Date or such earlier date as determined in Acquirer’s sole discretion (i) by this Agreementwire transfer of immediately available funds to such bank account as is specified in writing by Parent to Acquirer, if Acquirer elects to settle the Contingent Consideration in cash or (ii) by transferring MLP Common Units held, directly or indirectly, by Acquirer to Parent, if Acquirer elects to settle the Contingent Consideration in MLP Common Units. If Acquirer pays Parent the Contingent Consideration, in whole or in part, by transferring MLP Common Units, Acquirer shall notify Parent in writing of the date of payment of the Contingent Consideration, which notice shall be irrevocable with respect to the type of Contingent Consideration and shall set forth the Calculation Period and the number of MLP Common Units to be transferred to Parent as Contingent Consideration; provided that such payment shall be paid within ten five (105) Business Days after the occurrence date notice is delivered to Parent. If the Acquirer pays Parent the Contingent Consideration, in whole or in part, by transferring MLP Common Units, the Acquirer shall deliver to Parent a certification of a Triggering Event that occurs before non-foreign status for and duly executed by the fifth year anniversary Acquirer (or, if such Person is classified as an entity disregarded as separate from another Person, then by such other Person), dated as of the Closing Date with respect to Section 3.03(a)(i), before the seventh year anniversary date of payment of the Closing Date Contingent Consideration, in accordance with respect Sections 1445(b)(2) and 1446(f) of the Code, certifying that such Person is not a “foreign person” for such purposes. (e) Acquirer acknowledges and agrees that the possibility of Parent receiving the Contingent Consideration comprises a material inducement for Parent to Section 3.03(a)(ii)enter into this Agreement. The Parties acknowledge and agree that from and after the Closing, and before except as expressly provided to the tenth year anniversary contrary in this Agreement, (i) Acquirer has the right to operate the Compressco Entities in any way Acquirer deems appropriate in its sole discretion, (ii) the Contingent Consideration is speculative and is subject to numerous factors outside the control of Acquirer, (iii) there is no assurance that Parent will receive the Contingent Consideration and Acquirer has not promised, guaranteed or projected that Parent will receive Contingent Consideration and (iv) Acquirer has no obligation to operate the Compressco Entities (or any components of its business) in order to achieve the Contingent Payment Conditions. Notwithstanding anything in the immediately preceding sentence to the contrary, until the expiration of the Closing Date with respect to Section 3.03(a)(iiiMeasurement Period without Parent’s consent (which may be withheld in its sole discretion), (in each case, as applicable i) Acquirer shall use commercially reasonable efforts to such clause, cause the “Contingent Consideration Period”), each Contingent Consideration Eligible Company Equityholder (Compressco Entities to operate in accordance with Good Industry Practice, (ii) Acquirer shall cause the Compressco Entities to maintain adequate records in a manner that will allow for the calculation of the TTM Adjusted EBITDA and (iii) neither Acquirer nor any of its respective Contingent Consideration Pro Rata ShareAffiliates (including the Compressco Entities) is eligible will take any actions, or omit to receive take any actions, for the primary purpose of, or that would, without a good faith business reason unrelated to the results described in the following shares clauses, reasonably be expected to result in, (A) thwarting or inhibiting the achievement of Adara Class E Common Stock, as applicable the Contingent Payment Conditions in any material respect or (which shall be equitably adjusted to reflect stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares B) otherwise frustrating or other like change or transaction avoiding Acquirer’s obligations under this Agreement with respect to the Adara Class E Common Stock occurring on Contingent Consideration in any material respect. The Parties agree and acknowledge that Acquirer owes no fiduciary duty or after other express or implied duty to Parent in connection with the Closing Contingent Consideration other than as set forth herein and intend for the express provisions of this Agreement to govern their contractual relationship with respect to the Contingent Consideration. (f) In the event that, prior to the date end of such issuancethe Measurement Period, the “Contingent Consideration Shares”): (i) Upon Acquirer, Spartan or any of their Affiliates effects a sale (directly or indirectly) of all or substantially all of the occurrence assets of the Compressco Entities to a third party, or (ii) Acquirer, Spartan or the Compressco Entities effects a merger or consolidation or other transaction involving Acquirer, Spartan or the Compressco Entities (other than a conversion of any of the Compressco Entities from a limited partnership, corporation, limited liability company or other form of entity to a limited partnership, corporation, limited liability company or other form of entity, so long as (a) immediately following such conversion, Spartan and its Affiliates beneficially own, in the aggregate, an economic interest in such converted entity equal to or greater than the economic interest beneficially owned by Spartan and its Affiliates, in the aggregate, in the MLP immediately prior to such conversion and (b) such converted entity expressly assumes all of the obligations under this Agreement with respect to the Contingent Consideration), in each case which results in the General Partner being controlled, directly or indirectly, by a third party that does not control the General Partner as of immediately following the Closing (a “Triggering Event I Transaction”), then, in each such case, (A) Acquirer shall provide Parent with written notice of such Triggering Transaction, (B) the Contingent Payment Conditions shall be deemed to have been satisfied and (C) within ten days after the consummation of such Triggering Transaction, Acquirer shall pay to Parent the Contingent Consideration in cash in immediately available funds; provided that in lieu of clauses (B) and (C), Acquirer may, at its option, cause the third party acquirer or successor in such Triggering Transaction to expressly assume all of the obligations under this Agreement with respect to the Contingent Consideration; provided, further, that if the Triggering Transaction results in Spartan no longer being affiliated with the Compressco Entities, then Spartan must guarantee the payment of the Contingent Consideration in form acceptable to Parent. (g) In the event that, prior to the fifth year anniversary end of the ClosingMeasurement Period, Acquirer, Spartan or any of their Affiliates effect a one-time issuance sale or transfer, directly or indirectly, of an aggregate assets of 20,000,000 Contingent Consideration Shares; the Compressco Entities representing more than 5% of the Compressco Entities’ (i) total assets as of the end of the most recently completed fiscal quarter or (ii) Upon Adjusted EBITDA for the occurrence twelve months ended as of Triggering Event II the end of the most recently completed quarter, then the Parties shall cooperate in good faith to adjust the amount in clause (ii) of the definition of Contingent Payment Conditions based on the remaining assets and operations of the Compressco Entities after taking into account such disposition. (h) In the event that, prior to the seventh year anniversary end of the ClosingMeasurement Period, a one-time issuance the Compressco Entities consummate the acquisition, directly or indirectly, of an aggregate of 20,000,000 Contingent Consideration Shares; and (iii) Upon the occurrence of Triggering Event III prior to the tenth year anniversary assets representing more than 5% of the ClosingCompressco Entities’ (i) total assets as of the end of the most recently completed fiscal quarter or (ii) Adjusted EBITDA for the twelve months ended as of the end of the most recently completed quarter, a one-time issuance from any Person, including Acquirer, Spartan or their Affiliates, then the Parties shall cooperate in good faith to adjust the amount in clause (ii) of an aggregate the definition of 20,000,000 Contingent Consideration Shares. For Payment Conditions based on the avoidance consolidated assets and operations of doubt, the Contingent Consideration Eligible Company Equityholders shall be entitled to receive Contingent Consideration Shares upon the occurrence of each Triggering Event during the applicable Contingent Consideration PeriodCompressco Entities after taking into account such acquisition; provided, however, that in no event shall the Contingent Consideration Eligible Company Equityholders be entitled acquisition of assets currently held directly or indirectly by Spartan result in any adjustment to receive Contingent Consideration Share after the tenth year anniversary amount in clause (ii) of the Closing; provideddefinition of Contingent Payment Conditions, further, that each Triggering Event nor shall only occur once, if at all, and in no event shall the Contingent Consideration Eligible Company Equityholders be entitled to receive an aggregate any assets or operations of more than 60,000,000 Contingent Consideration Shares; provided, further, that Triggering Event I, Triggering Event II and Triggering Event III may be achieved Spartan at the same time or over of Closing be included in the same overlapping Trading Dayscalculation of TTM Adjusted EBITDA. (bi) Notwithstanding anything In the event that Acquirer, Spartan or their Affiliates transfers, integrates or otherwise consolidates their assets or operations to or into the Compressco Entities, Acquirer and Spartan shall cause the Compressco Entities to maintain all accounting, financial and other information necessary for the preparation of the Adjusted EBITDA Statement and Supporting Documentation and the review thereof by Parent in accordance with Section 2.04(b), including separate records relating to the contrary contained hereinassets and operations of the Compressco Entities immediately prior to such transfer, no certificates integration or scrip representing fractional shares of Adara Class E Common Stock consolidation and separate records relating to the assets so transferred, integrated or consolidated to or into the Compressco Entities. (j) All payments made pursuant to this Section 2.04 shall be issued in respect of Contingent Consideration Shares and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Adara Class E Common Stock. In lieu of the issuance of any such fractional shares, the Exchange Agent shall round up or down treated as adjustments to the nearest whole share of Adara Class E Common Stock, as applicable, with a fraction of 0.5 or more rounded up. No cash settlements purchase price paid for the Subject Interests for all Tax purposes and shall be made with respect treated as such by Acquirer and Parent on their Tax Returns to fractional shares eliminated the extent permitted by roundingLaw.