Common use of Determination of Earnout Amount Clause in Contracts

Determination of Earnout Amount. Within 120 days after the end of the applicable Earnout Measurement Period, Buyer shall prepare and deliver to the Representative a report certified by an officer of Buyer (the “Earnout Report”) setting forth Buyer’s calculation of the Net Sales for such Earnout Measurement Period and the resulting Earnout Amount with respect to such Earnout Measurement Period. If the Representative has any objections to the calculation of the Net Sales and the resulting Earnout Amount, then the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earnout Report. Upon reasonable advance written notice, Buyer shall grant the Representative reasonable access to the documents and records evidencing the Net Sales generated in an Earnout Period requested by the Representative for its inspection at the Representative’s sole cost and expense. If the Representative fails to deliver an Earnout Objections Statement within such thirty (30) day period, then the calculation of the Net Sales and the resulting Earnout Amount set forth in the Earnout Report shall become final and binding on all Parties. If the Representative delivers an Earnout Objections Statement within such thirty (30) day period, then the Representative and Buyer will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Representative has submitted the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Earnout Report or any more favorable to the Representative than is proposed in the Earnout Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Earnout Amount has the greatest difference from the final Earnout Amount as determined by the Accountants under this Section 1.6; otherwise, such costs, fees and expenses shall be borne equally by Buyer, on the one hand, and the Representative (on behalf of Sellers), on the other hand. Upon the Earnout Amount becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Amount to the Representative (for distribution to the Sellers in accordance with their Pro Rata Percentages) in accordance with Section 1.5.

Determination of Earnout Amount. Within 120 ninety (90) days after the end of each of the applicable First Earnout Measurement Period and the Second Earnout Measurement Period, Buyer shall prepare and deliver to the Representative a detailed report certified by an officer of Buyer (the “Earnout Report”) containing the audited financial statements of the Company on a consolidated basis for the respective Earnout Measurement Period and setting forth Buyer’s calculation of Business Revenue for each of the Net Sales for such First Earnout Measurement Period and Second Earnout Measurement Period and the applicable resulting Earnout Amount with respect to such Earnout Measurement PeriodAmount. If the Representative has any objections to the calculation of the Net Sales Business Revenue and the applicable resulting Earnout AmountAmount prepared by Buyer, then the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earnout Report. Upon reasonable advance written notice, Buyer shall grant the Representative reasonable access to the documents and records evidencing the Net Sales generated in an Earnout Period requested by the Representative for its inspection at the Representative’s sole cost and expense. If the Representative fails to deliver an Earnout Objections Statement within such thirty (30) day period, then the calculation of the Net Sales Business Revenue and the applicable resulting Earnout Amount set forth in the Earnout Report shall become final and binding on all Parties. If the Representative delivers an Earnout Objections Statement within such thirty (30) day period, then the Representative and Buyer will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Representative has submitted the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Earnout Report or any more favorable to the Representative than is proposed in the Earnout Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the applicable Earnout Amount has the greatest difference from the applicable final Earnout Amount as determined by the Accountants under this Section 1.6; 1.7, otherwise, such costs, fees and expenses shall be borne equally by Buyer, on the one hand, and the Representative (on behalf of the Sellers), on the other hand. Upon the applicable Earnout Amount becoming final and binding in accordance with this Section 1.61.7, Buyer shall pay such applicable Earnout Amount to the Representative (for distribution to the Sellers in accordance with their Pro Rata Percentages) in accordance with Section 1.51.4(d)(i). In no event will the sum of the First Earnout Amount plus the Second Earnout Amount exceed $3,000,000.

Determination of Earnout Amount. Within 120 ninety (90) days after the end of the applicable Earnout Measurement Periodeach calendar year, Buyer Xxxxx shall prepare and deliver to the Representative a report certified by an officer of Buyer (the “Earnout Report”) setting forth Buyer’s calculation of the Net Sales for such Earnout Measurement Period calendar year and the resulting Earnout Amount with respect to Amount. The Earnout Report shall include the total quantity of Drug sold, gross sales and Net Sales for each country in which sales were made, the date of any first commercial sales in any country during such Earnout Measurement Periodcalendar year, the currency exchange rates used in determining Net Sales, and a calculation of the amounts due under Section 1.6. If the Representative has any objections to the calculation of the Net Sales and the resulting Earnout Amount, then the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earnout Report. Upon reasonable advance written notice, Buyer shall grant the Representative reasonable access to the documents and records evidencing the Net Sales generated in an Earnout Period requested by the Representative for its inspection at the Representative’s sole cost and expense. If the Representative fails to deliver an Earnout Objections Statement within such thirty (30) day period, then the calculation of the Net Sales and the resulting Earnout Amount set forth in the Earnout Report shall become final and binding on all Parties. If the Representative delivers an Earnout Objections Statement within such thirty (30) day period, then the Representative and Buyer will use commercially reasonable efforts to resolve any such disputes, but if a final resolution is not obtained within thirty (30) days after the Representative has submitted the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted to the Accountants. The Accountants’ determination of such unresolved disputes will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Earnout Report or any more favorable to the Representative than is proposed in the Earnout Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Earnout Amount has the greatest difference from the final Earnout Amount as determined by the Accountants under this Section 1.6; otherwise, such costs, fees and expenses shall be borne equally by Buyer, on the one hand, and the Representative (on behalf of Sellers), on the other hand; provided that, if there is no difference between the Earnout Amount as determined by the Accountants versus the Earnout Report, Seller shall pay 100% of the costs, expenses and fees of the Accountants; and provided further, if there is a difference between the Earnout Amount as determined by the Accountants versus the Earnout Report, the costs, expenses and fees of the Accountants shall be borne by the Parties in proportion to the respective Party’s difference from the final Earnout Amount as determined by the Accountants. Upon the Earnout Amount becoming final and binding in accordance with this Section 1.61.7, Buyer shall pay such Earnout Amount to the Representative (for distribution to the Sellers in accordance with their Pro Rata Percentages) in accordance with Section 1.51.4(c).

Determination of Earnout Amount. Within 120 (i) As promptly as practicable, but in any event within 90 days after the end of the applicable Earnout Measurement PeriodDate, Buyer shall prepare and Acquirer will deliver to the Representative a report certified by an officer of Buyer statement (the a “Preliminary Earnout ReportStatement”) setting forth Buyerin reasonable detail Acquirer’s calculation of (i) the Net Sales for such Gross Earnout Amount, which shall include a calculation of the following amounts (A) Revenue CAGR, (B) Measurement Period Revenue, (C) Base Revenue (as determined pursuant to Section 2.7(c)), (D) Average Measurement Period Revenue, (E) the Applicable Multiple, and (ii) the Earnout Amount. (ii) The Representative shall be permitted (but shall not be required) to engage the Representative Auditor for purposes of assisting the Representative with auditing the Preliminary Earnout Statement (which Representative Auditor shall not be the Reviewing Accountant). Subject to entering into a confidentiality agreement with, and reasonably acceptable to, Acquirer, the Representative and the resulting Representative Auditor shall be permitted reasonable access during normal business hours upon reasonable advance notice to review Acquirer’s, the Surviving Corporation’s and its Subsidiaries’ books and records and any work papers used in the preparation of the Preliminary Earnout Amount Statement. The confidentiality agreement referenced in the foregoing sentence shall, in any event, require the Representative and the Representative Auditor to hold in confidence and only disclose to the Effective Time Holders information to the extent relevant to objections to the Preliminary Earnout Statement and not otherwise disclose to any Effective Time Holder confidential information of Acquirer and its Affiliates, including the Surviving Corporation. The Representative and the Representative Auditor may make reasonable inquires of Acquirer, the Surviving Corporation and their respective accountants regarding questions or disagreements arising in the course of their review thereof, and Acquirer shall use its, and shall cause the Surviving Corporation and its Subsidiaries to use their, commercially reasonable efforts to cause any appropriate personnel of Acquirer or its Subsidiaries or such accountants to reasonably cooperate with respect and respond to such Earnout Measurement Periodinquiries. If the Representative has any objections to the calculation of the Net Sales and the resulting Preliminary Earnout AmountStatement, then the Representative will shall deliver to Acquirer a detailed written statement setting forth its objections thereto (the an “Earnout Objections Statement”) describing its objections with reasonable supporting detail as to Buyer any such disputed items. If an Earnout Objections Statement is not delivered to Acquirer within thirty (30) 60 days after delivery of the Preliminary Earnout ReportStatement to the Representative, such Preliminary Earnout Statement, and the Earnout Amount set forth therein, shall be final, binding and non-appealable by the parties hereto and the Effective Time Holders. Upon reasonable advance written noticeIf an Earnout Objections Statement is timely delivered, Buyer shall grant the Representative reasonable access and Acquirer shall negotiate in good faith to resolve any such objections set forth therein, and any resolution by them of such objections shall be in writing and shall be final and binding on the parties hereto and the Effective Time Holders with respect to the documents Earnout Amount agreed by Acquirer and records evidencing the Net Sales generated in an Earnout Period requested by the Representative for its inspection at the Representative’s sole cost and expensethrough such negotiations. If the Representative fails to deliver an and Acquirer do not reach a final resolution of such objections within 60 days after the delivery of the Earnout Objections Statement within Statement, the Representative and Acquirer shall submit such thirty (30) day period, then dispute to the calculation Reviewing Accountant. Any further submissions to the Reviewing Accountant must be in writing and delivered to each party to the dispute. The Reviewing Accountant shall make a final determination of the Net Sales and Earnout Amount, including each applicable component thereof (provided however, that the resulting Reviewing Accountant shall not make any determination of the right of Acquirer to make any set off against such Earnout Amount for Indemnifiable Matters, which will be determined in accordance with Article 9 of this Agreement), in accordance with the guidelines, cost allocation and procedures set forth in Schedule 2.3 of the Agreement (applied mutatis mutandis to this Section 2.7(d)). The parties will cooperate with the Reviewing Accountant during the term of its engagement. The determination of the Earnout Report Amount shall become final and binding on all Parties. If the Representative parties (including the Effective Time Holders) on the date the Reviewing Accountant delivers an Earnout Objections Statement within such thirty (30) day period, then the Representative and Buyer will use commercially reasonable efforts to resolve any such disputes, but if a its final resolution is not obtained within thirty (30) days after the Representative has submitted the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a resolution of such unresolved disputes promptly, but in any event within thirty (30) days after the dispute is submitted writing to the Accountants. The Accountants’ determination of such unresolved disputes will be final and binding upon all Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Earnout Report or any more favorable to the Representative than is proposed in the Earnout Objections Statement. The costs, expenses and fees of the Accountants shall be borne by the Party whose calculation of the Earnout Amount has the greatest difference from the final Earnout Amount as determined by the Accountants under this Section 1.6; otherwise, such costs, fees and expenses shall be borne equally by Buyer, on the one hand, and the Representative (on behalf of Sellers), on the other hand. Upon the Earnout Amount becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Amount to the Representative (for distribution to the Sellers in accordance with their Pro Rata Percentages) in accordance with Section 1.5parties.