Common use of Determination of Earnout Clause in Contracts

Determination of Earnout. Within forty-five (45) days after the end of each Earnout Measurement Period, Buyer shall prepare and deliver to the Representative a report (the “Earnout Report”) setting forth Buyer’s calculation of Revenue and the resulting Earnout Shares and Earnout Funds. If the Representative has any objections to the calculation of Revenue and the resulting Earnout Shares and Earnout Funds 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. If the Representative fails to deliver an Earnout Objections Statement within such thirty (30) day period, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h).

Determination of Earnout. Within forty-five (45i) days With respect to the achievement of the Revenue Milestones or the EBITDA Milestones, as soon as practicable (but in any event within twenty (20) days) after the end of each Earnout Measurement Periodapplicable Filing Date for Pubco’s annual report for a given fiscal year, Buyer Pubco’s Chief Financial Officer (the “CFO”) shall prepare and deliver to the Seller Representative and the Pubco Board (each, a report (the “Earnout ReportReviewing Party”) setting a written statement (each, a “Revenue/EBITDA Earnout Statement”) that sets forth Buyerthe CFO’s calculation determination of Revenue the revenue and EBITDA of Pubco for such year and whether the resulting applicable revenue and EBITDA milestone has been satisfied for such year. Each Reviewing Party shall have twenty (20) days after its receipt of a Revenue/EBITDA Earnout Shares Statement to review it. The Reviewing Parties, and their respective Representatives on their behalves, may make inquiries of the CFO and related personnel and advisors of Pubco and its Subsidiaries regarding questions concerning or disagreements with the applicable Revenue/EBITDA Earnout FundsStatement arising in the course of their review thereof, and Pubco and its Subsidiaries shall provide reasonable cooperation in connection therewith. If the Representative either Reviewing Party has any objections to a Revenue/EBITDA Earnout Statement, such Reviewing Party shall deliver to Pubco (to the calculation attention of Revenue the CFO) and the resulting other Reviewing Party a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Reviewing Party within twenty (20) days following the date of delivery of each Revenue/EBITDA Earnout Shares and Earnout Funds prepared by BuyerStatement, then such Reviewing Party shall have waived its right to contest such Revenue/EBITDA Earnout Statement and the Representative will deliver a detailed determination of the revenue and EBITDA for such year (and whether the Revenue Milestone and/or EBITDA Milestone, as applicable, has been satisfied for such year) as set forth therein. If such written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earnout Report. If the Representative fails to deliver an Earnout Objections Statement is delivered by a Reviewing Party within such thirty twenty (3020) day period, then the calculation Reviewing Parties shall negotiate in good faith to resolve any such objections for a period of Revenue and the resulting Earnout Shares and Earnout Funds set forth in the Earnout Report shall become final and binding on all Partiestwenty (20) days thereafter. If the Representative delivers an Earnout Objections Statement Reviewing Parties do not reach a final resolution within such thirty twenty (3020) day period, then then, upon the Representative and Buyer will use commercially reasonable efforts written request of either Reviewing Party, the Reviewing Parties shall refer the dispute to resolve any such disputes, but if a the Independent Expert for 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 in accordance with 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 procedures 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h1.10(b)(iii).

Determination of Earnout. Within forty-(i) With respect to the achievement of the Price Earnout Milestones, during the Earnout Period the Company’s Chief Financial Officer (the “CFO”) shall monitor on an ongoing basis the VWAP of the Company Ordinary Shares on the principal securities exchange or securities market on which the Company Ordinary Shares are then traded on each Trading Day during the Earnout Period, and as soon as practicable (and in any event within five (455) days Business Days) after the end of each applicable Price Earnout Measurement PeriodMilestone has been achieved, Buyer the CFO shall prepare and deliver to each of the Representative Parties a report written statement of that fact accompanied by the relevant VWAP calculation (each, a “Price Earnout Statement”). Each Representative Party shall have five (5) Business Days after its receipt of a Price Earnout Statement to review it, and each Representative Party and its Representatives on its behalf may make inquiries to the “CFO and related Company personnel and advisors regarding questions concerning or disagreements with the Price Earnout Report”) setting forth Buyer’s calculation Statement arising in the course of Revenue their review thereof, and the resulting Earnout Shares and Earnout FundsCompany shall cooperate in good faith in connection therewith. If the either Representative Party has any objections to a Price Earnout Statement, such Representative Party shall deliver to the Company (to the attention of the CFO) and the other Representative Party a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Representative Party within five (5) Business Days following the date of delivery of each Price Earnout Statement, then such Representative Party shall have waived its right to contest such Price Earnout Statement and the calculation of Revenue and the resulting Earnout VWAP of the Company Ordinary Shares and Earnout Funds prepared by Buyer, then during the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery applicable portion of the Earnout ReportPeriod (and whether a Price Earnout Milestone has been achieved) as set forth therein. If the such written statement is delivered by a Representative fails to deliver an Earnout Objections Statement Party within such thirty five (305) day period, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds 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 Business Day period, then the Representative and Buyer will use commercially reasonable efforts Parties shall negotiate in good faith to resolve any such disputes, but if objections for a period of five (5) Business Day thereafter. If the Representative Parties do not reach a final resolution is not obtained within thirty such five (305) days after Business Day period, then upon the written request of either Representative Party the Representative has submitted Parties will refer the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by to the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a Independent Expert for final 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h1.2(c). The Company shall issue a press release once the Price Earnout Milestone has been settled in accordance with the mechanism above, or earlier immediately following the reaching of a written agreement (or no objections) between the Company and the Representative Parties. The actual conversion of the Earnout Rights into Earnout Shares shall be made as soon as practicable in accordance with the then applicable rules of the TASE (to the extent that the Company is listed for trading on the TASE at such time) and subject to the terms set forth in Sections ‎1.2 (h)(i) and 1.2(h)(ii) below.

Determination of Earnout. Within forty-(i) With respect to the achievement of the Price Earnout Milestones, during the Earnout Period the Company’s Chief Financial Officer (the “CFO”) shall monitor on an ongoing basis the VWAP of the Company Ordinary Shares on the principal securities exchange or securities market on which the Company Ordinary Shares are then traded on each Trading Day during the Earnout Period, and as soon as practicable (and in any event within five (455) days Business Days) after the end of each applicable Price Earnout Measurement PeriodMilestone has been achieved, Buyer the CFO shall prepare and deliver to each of the Representative Parties a report written statement of that fact accompanied by the relevant VWAP calculation (each, a “Price Earnout Statement”). Each Representative Party shall have five (5) Business Days after its receipt of a Price Earnout Statement to review it, and each Representative Party and its Representatives on its behalf may make inquiries to the “CFO and related Company personnel and advisors regarding questions concerning or disagreements with the Price Earnout Report”) setting forth Buyer’s calculation Statement arising in the course of Revenue their review thereof, and the resulting Earnout Shares and Earnout FundsCompany shall cooperate in good faith in connection therewith. If the either Representative Party has any objections to a Price Earnout Statement, such Representative Party shall deliver to the Company (to the attention of the CFO) and the other Representative Party a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Representative Party within five (5) Business Days following the date of delivery of each Price Earnout Statement, then such Representative Party shall have waived its right to contest such Price Earnout Statement and the calculation of Revenue and the resulting Earnout VWAP of the Company Ordinary Shares and Earnout Funds prepared by Buyer, then during the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery applicable portion of the Earnout ReportPeriod (and whether a Price Earnout Milestone has been achieved) as set forth therein. If the such written statement is delivered by a Representative fails to deliver an Earnout Objections Statement Party within such thirty five (305) day period, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds 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 Business Day period, then the Representative and Buyer will use commercially reasonable efforts Parties shall negotiate in good faith to resolve any such disputes, but if objections for a period of five (5) Business Day thereafter. If the Representative Parties do not reach a final resolution is not obtained within thirty such five (305) days after Business Day period, then upon the written request of either Representative Party the Representative has submitted Parties will refer the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by to the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a Independent Expert for final 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h1.2(c). The Company shall issue a press release once the Price Earnout Milestone has been settled in accordance with the mechanism above, or earlier immediately following the reaching of a written agreement (or no objections) between the Company and the Representative Parties. The actual conversion of the Earnout Rights into Earnout Shares shall be made as soon as practicable in accordance with the then applicable rules of the TASE (to the extent that the Company is listed for trading on the TASE at such time) and in accordance with the terms set forth in Section 1.2(h) below.

Determination of Earnout. Within forty-(i) With respect to the achievement of the Earnout Milestones, during the Earnout Period the Company’s Chief Financial Officer (the “CFO”) shall monitor on an ongoing basis the VWAP of the Company Ordinary Shares on the principal securities exchange or securities market on which the Company Ordinary Shares are then traded on each Trading Day during the Earnout Period, and as soon as practicable (and in any event within five (455) days Business Days) after the end of each applicable Earnout Measurement PeriodMilestone has been achieved, Buyer the CFO shall prepare and deliver to each of the Representative Parties a report written statement of that fact accompanied by the relevant VWAP calculation (the each, an “Earnout ReportStatement”). Each Representative Party shall have five (5) setting forth Buyer’s calculation Business Days after its receipt of Revenue an Earnout Statement to review it, and each Representative Party and its Representatives on its behalf may make inquiries to the CFO and related Company personnel and advisors regarding questions concerning or disagreements with such Earnout Statement arising in the course of their review thereof, and the resulting Earnout Shares and Earnout FundsCompany shall cooperate in good faith in connection therewith. If the either Representative Party has any objections to an Earnout Statement, such Representative Party shall deliver to the Company (to the attention of the CFO) and the other Representative Party a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Representative Party within five (5) Business Days following the date of delivery of each Earnout Statement, then such Representative Party shall have waived its right to contest such Earnout Statement and the calculation of Revenue and the resulting Earnout VWAP of the Company Ordinary Shares and Earnout Funds prepared by Buyer, then during the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery applicable portion of the Earnout ReportPeriod (and whether an Earnout Milestone has been achieved) as set forth therein. If the such written statement is delivered by a Representative fails to deliver an Earnout Objections Statement Party within such thirty five (305) day period, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds 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 Business Day period, then the Representative and Buyer will use commercially reasonable efforts Parties shall negotiate in good faith to resolve any such disputes, but if objections for a period of five (5) Business Day thereafter. If the Representative Parties do not reach a final resolution is not obtained within thirty such five (305) days after Business Day period, then upon the written request of either Representative Party the Representative has submitted Parties will refer the Earnout Objections Statement, any remaining matters which are in dispute will be resolved by to the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a Independent Expert for final 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h1.2(c). The Company shall issue a press release once the Earnout Milestone has been settled in accordance with the mechanism above, or earlier immediately following the reaching of a written agreement (or no objections) between the Company and the Representative Parties. The actual conversion of the Earnout Rights into Earnout Shares shall be made as soon as practicable in accordance with the then applicable rules of the TASE (to the extent that the Company is listed for trading on the TASE at such time) and in accordance with the terms set forth in Section ‎1.2 (h) below.

Determination of Earnout. Within forty-five No later than ten (4510) days after Business Days following the end issuance of each Earnout Measurement Periodthe opinion relating to the Purchaser’s audited financials for the fiscal year ending December 31, Buyer 2007 by the Purchaser’s independent auditors (the “Audit Firm”), the Purchaser shall prepare and deliver to the Shareholder Representative a report (the “Earnout Report”) setting forth Buyer’s calculation of Revenue and the resulting Earnout Shares and Earnout Funds. If the Representative has any objections to the calculation of Revenue and the resulting Earnout Shares and Earnout Funds prepared by Buyer, then the Representative will deliver a detailed written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty setting forth (30x) days after delivery the computation of the 2007 Recognized Revenue and the Purchaser’s calculation of the Earnout ReportAmount, and (y) a summary of all material financial information used in making such computation. In the event that the Shareholder Representative disputes the Purchaser’s determination of the 2007 Recognized Revenue or the Purchaser’s calculation of the Earnout Amount, the Shareholder Representative shall notify the Purchaser in writing by 5:00 PM United States Mountain Time on the fifteenth (15) day following the receipt of the Earnout Statement of such dispute (such date, calculated without including the date of receipt of the Earnout Notice, the “Earnout Dispute Deadline” and such notice, the “Earnout Dispute Notice”), which Earnout Dispute Notice shall provide a reasonably detailed description of such dispute and the Shareholder Representative’s calculation of 2007 Recognized Revenue and the Earnout Amount. The Parties agree that any dispute regarding the Earnout Statement shall be resolved exclusively in the manner and pursuant to the procedures set forth in Section 6.5(e). If the Shareholder Representative fails to does not deliver an Earnout Objections Statement within such thirty (30) day periodDispute Notice on or before the Earnout Dispute Deadline, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds Amount set forth in the Earnout Report Statement shall become be deemed conclusive, final and binding on all Parties. If the parties hereto and none of the Shareholders or the Shareholder 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 permitted to Buyer and the Representative and will submit a resolution of dispute 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h)amount.

Determination of Earnout. Within forty-five (45i) days Pubco’s Chief Financial Officer (the “CFO”) shall monitor the closing price of the Pubco Ordinary Shares on the Trading Market on each Trading Day during the Price Earnout Period, and as promptly as practicable (but in any event within ten (10) Business Days) after the end of (A) each calendar month during the Price Earnout Period and (B) each Price Measurement Period, Buyer shall the CFO will prepare and deliver send to the Seller Representative and Pubco’s Board of Directors (each, a report “Reviewing Party”), with a copy to the Escrow Agent and the CVR Rights Agent, a written statement (the each, a “Price Earnout ReportStatement”) setting that sets forth Buyer’s calculation (i) the closing price of Revenue the Pubco Ordinary Shares on the Trading Market on each Trading Day during the prior sixty (60) Trading Days (or if lesser, such number of Trading Days since the Closing) as of such calendar month or Price Measurement Period then ended and (ii) whether a Price Earnout Milestone has been achieved during such sixty (60) Trading Day period. Each Reviewing Party will have twenty (20) days after its receipt of a Price Earnout Statement to review it, and each Reviewing Party and its Representatives on its behalf may make inquiries to the resulting CFO and related personnel and advisors of Pubco and its Subsidiaries regarding questions concerning or disagreements with the Price Earnout Shares Statement arising in the course of their review thereof, and Earnout FundsPubco and its Subsidiaries shall provide reasonable cooperation in connection therewith. If the Representative either Reviewing Party has any objections to a Price Earnout Statement, then it shall deliver to the CFO and the other Reviewing Party, along with a copy to the Escrow Agent and the CVR Rights Agent, a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Reviewing Party within twenty (20) days following the date of delivery of such Price Earnout Statement, then such Reviewing Party will have waived its right to contest such Price Earnout Statement and the calculation of Revenue the closing price of the Pubco Ordinary Shares on the Trading Market on each Trading Day during the applicable portion of the Price Earnout Period (and the resulting whether a Price Earnout Shares and Earnout Funds prepared by Buyer, then the Representative will deliver a detailed Milestone has been achieved) as set forth therein. If such written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earnout Report. If the Representative fails to deliver an Earnout Objections Statement is delivered by a Reviewing Party within such thirty twenty (3020) day period, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds set forth Reviewing Parties shall negotiate 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 good faith to resolve any such disputes, but if objections for a period of ten (10) Business Day thereafter. If the Reviewing Parties do not reach a final resolution is not obtained within thirty such ten (3010) days after Business Day period, then upon the Representative has submitted written request of either Reviewing Party the Earnout Objections Statement, any remaining matters which are in Reviewing Parties will refer the dispute will be resolved by to the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a Independent Expert for final 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h)2.3(e)(iii) below.

Determination of Earnout. (i) Within forty-five ten (4510) days Business Days after each calendar quarter until a Milestone is reached in any Earnout Year, the end of each Earnout Measurement Period, Buyer shall CFO will prepare and deliver to the Representative Parties, a report written statement (the each, an “Earnout ReportStatement”) setting that sets forth Buyerthe CFO’s calculation determination in accordance with the terms of this Section 1.16 of the Gross Revenue for the Earnout Year-to-date, and whether the resulting applicable Earnout Shares Milestone has been reached during such Earnout Year-to-date. Each Representative Party will have twenty (20) days after its receipt of the Earnout Statement to review it, and each Representative Party and its Representatives on its behalf may make inquiries to the CFO and related personnel and advisors of Purchaser and its Subsidiaries regarding questions concerning or disagreements with the Earnout FundsStatement arising in the course of their review thereof, and Purchaser and its Subsidiaries shall provide reasonable cooperation in connection therewith. If the either Representative Party has any objections to an Earnout Statement, such Representative Party shall deliver to the calculation of Revenue CFO and the resulting other Representative Party a statement setting forth its objections thereto (in reasonable detail). If such written statement is not delivered by a Representative Party within twenty (20) days following the date of delivery of such Earnout Shares and Earnout Funds prepared by BuyerStatement, then such Representative Party will have waived its right to contest such Earnout Statement and the Representative will deliver a detailed determination of the Gross Revenues for such Earnout Year (and whether an Earnout Milestone has been reached for such Earnout Year-to-date) as set forth therein. If such written statement (the “Earnout Objections Statement”) describing its objections to Buyer within thirty (30) days after delivery of the Earnout Report. If the is delivered by a Representative fails to deliver an Earnout Objections Statement Party within such thirty twenty (3020) day period, then the calculation of Revenue and the resulting Earnout Shares and Earnout Funds set forth Reviewing Parties shall negotiate 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 good faith to resolve any such disputes, but if objections for a period of ten (10) Business Day thereafter. If the Reviewing Parties do not reach a final resolution is not obtained within thirty such ten (3010) days after Business Day period, then, upon the written request of either Representative has submitted Party, the Earnout Objections Statement, any remaining matters which are in Reviewing Parties will refer the dispute will be resolved by to the Accountants. The Accountants will prepare and deliver a written report to Buyer and the Representative and will submit a Independent Expert for final 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 Shares and the Earnout Funds has the greatest difference from the final Earnout Shares and final Earnout Funds 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 the Seller Parties), on the other hand. Upon any Earnout Shares and Earnout Funds becoming final and binding in accordance with this Section 1.6, Buyer shall pay such Earnout Shares and Earnout Funds to the applicable Seller Parties in accordance with Section 1.3(h)1.16(b)(ii) below.