Common use of Earnout Payment Procedures Clause in Contracts

Earnout Payment Procedures. (i) Within 5 Business Days after the Preliminary Operating Income Determination for any Year becomes the Final Operating Income Determination for that Year, Sellers shall notify the Surviving Corporation in writing as to how they desire to receive the Earnout Payment for that year, if any is due, setting forth (A) how much of the Earnout Payment they desire to receive in Common Stock, and in how many certificates, (B) how much they desire to receive in cash, (C) delivery instructions for certificates of Common Stock, and (D) the U.S. account or accounts, with wiring instructions, to which they desire any cash portion to be paid (the "SELLERS NOTICE"). The cash portion of any Earnout Payment shall be paid, and certificates representing the Common Stock portion of any Earnout Payment shall be delivered, by the Surviving Corporation within 5 Business Days of receipt of Sellers Notice. To the extent Sellers have not paid the Surviving Corporation any Shortfall pursuant to PARAGRAPH 3.2(F) or any Indemnified Losses pursuant to PARAGRAPH 11.1, the Surviving Corporation may deduct such unpaid amounts from any Earnout Payment without prejudice to any other rights the Surviving Corporation may have against the Sellers with respect to the Shortfall or the Indemnified Losses. (ii) If Sellers elect to receive any portion of the Year One Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year One Earnout so designated divided by (B) $9. If Sellers elect to receive any portion of the Year Two Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Two Earnout so designated divided by (B) $12. If Sellers elect to receive any portion of the Year Three Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Three Earnout so designated divided by (B) $15. The denominators used in each of the preceding three sentences of this PARAGRAPH 3.3(H)(II) shall be adjusted for any stock splits or other reclassifications and any transaction in which the Common Stock is replaced with or exchanged for the capital stock of a successor subsequent to the execution of this Agreement.

Earnout Payment Procedures. (i) Within 5 Business Days after ten (10) days following the Preliminary Operating Income Determination completion of the audit of Parent’s financial statements for any Year becomes the Final Operating Income Determination for that Yearfiscal year ending December 31, Sellers 2026, and no later than seventy (70) days following the end of the fiscal year ending December 31, 2026, Parent shall notify prepare, or cause to be prepared, and deliver to the Surviving Corporation Representative a statement (an “Earnout Statement”) setting forth in writing as to how they desire to receive the Earnout Payment for that year, if any is due, setting forth Parent’s good faith calculation of (A) how much of the Earnout Payment they desire to receive in Common Stock, 2026 EBITDA and in how many certificates, the (B) how much they desire to receive Earnout Amount (if any) resulting therefrom, prepared in cashaccordance with the terms of this Agreement, (C) delivery instructions for certificates of Common Stockincluding the Accounting Principles, the adjustment and (D) the U.S. account or accounts, with wiring instructions, to which they desire any cash portion to be paid calculation principles attached hereto as Annex C (the "SELLERS NOTICE"“Earnout Principles”) and the sample EBITDA calculation set forth in Exhibit H (the “Sample EBITDA Calculation”). The cash portion of any Earnout Payment shall be paid, and certificates representing the Common Stock portion of any Earnout Payment shall be delivered, by the Surviving Corporation within 5 Business Days of receipt of Sellers Notice. To the extent Sellers have not paid the Surviving Corporation any Shortfall pursuant to PARAGRAPH 3.2(F) or any Indemnified Losses pursuant to PARAGRAPH 11.1, the Surviving Corporation may deduct such unpaid amounts from any Earnout Payment without prejudice to any other rights the Surviving Corporation may have against the Sellers with respect to the Shortfall or the Indemnified Losses. (ii) Within forty-five (45) days after the Earnout Statement is delivered to the Representative, the Representative shall review and respond to the Earnout Statement by delivering written notice to Parent, indicating either that such Earnout Statement shall be final and binding for purposes of this Section 1.11(b) or specifying the scope of its disagreement with the information contained in the Earnout Statement. If Sellers the Representative intends to object to the calculation of the 2026 EBITDA included in the determination of the Earnout Amount (such written notice, an “Earnout Statement Objection”), then the Earnout Statement Objection shall set forth a specific description of the basis of such objection and the specific adjustments to the calculation of the 2026 EBITDA or Earnout Amount, as applicable, that the Representative believes should be made. The Representative may only dispute items reflected in the Earnout Statement on the basis that they were not prepared in accordance with the requirements set forth in this Agreement (including the exhibits, annexes and schedules hereto) or that the Earnout Statement or any amounts set forth therein contain mathematical errors. (iii) If no Earnout Statement Objection is delivered to Parent pursuant to Section 1.11(b)(ii) above within such forty-five (45) day period, then the Representative shall be deemed to have accepted such Earnout Statement and such Earnout Statement shall be the final Earnout Statement with respect to the Earnout Amount. If an Earnout Statement Objection is delivered to Parent pursuant to Section 1.11(b)(ii) above, then the Representative and Parent shall promptly attempt in good faith to resolve any dispute or disagreement relating to the 2026 EBITDA or Earnout Amount, as applicable (an “Earnout Statement Dispute”). (iv) If the Representative and Parent are able to resolve every item in an Earnout Statement Dispute within thirty (30) calendar days after the delivery of the applicable Earnout Statement Objection to Parent, then Representative and Parent shall mutually agree on the Earnout Statement that shall be final and binding for purposes of this Section 1.11(b). If the Representative and Parent are unable to resolve every item in an Earnout Statement Dispute within thirty (30) calendar days after the delivery of the applicable Earnout Statement Objection to Parent, then at any time thereafter the Representative or Parent may elect to receive any portion have unresolved items in such Earnout Statement Dispute resolved by the Neutral Accountant, who shall, acting as experts and not as arbitrators, determine on the basis of the Year One Earnout criteria set forth in Common Stockthis Section 1.11(b)(iv), and only with respect to the remaining accounting-related differences so submitted to the Neutral Accountant (and not by independent review), whether and to what extent, if any, the number 2026 EBITDA or Earnout Amount, as applicable, as derived from the applicable Earnout Statement, requires adjustment. In connection with the engagement of shares they the Neutral Accountant, each Party shall receive execute reasonable engagement letters in the reasonable discretion of the respective Parties and supply such other documents and information as the Neutral Accountant reasonably requires; provided, however, that neither Party shall be obligated to make any working papers available to the Neutral Accountant unless and until the Neutral Accountant has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such Party. The Representative and Parent will provide the Neutral Accountant, within ten (10) days of its selection, with a definitive statement of the position of each party with respect to each unresolved objection. Parent will provide the Neutral Accountant access to the books and records of the Surviving Corporation related to the calculation of the 2026 EBITDA and the Earnout Amount. The Neutral Accountant shall be instructed to use every reasonable effort to perform its services within thirty (30) calendar days after submission of the Earnout Statement Dispute to it and, in any case, as soon as practicable after such submission. In resolving an Earnout Statement Dispute, the Neutral Accountant shall not assign a value to any item greater than the greatest value for such item claimed by any Party, or less than the smallest value for such item claimed by any Party, as presented to the Neutral Accountant pursuant hereto. The applicable Earnout Statement, as it may be adjusted by the Neutral Accountant’s resolution of such Earnout Statement Dispute, shall constitute the final Earnout Statement with respect to the applicable Earnout Amount and shall be non-appealable by the Parties, absent fraud or manifest error. The fees and expenses of the Neutral Accountant in connection with the services provided pursuant to this Section 1.11(b)(iv) shall be allocated between the Company Securityholders and Parent such that the Company Securityholders, on the one hand, and Parent, on the other hand, pay an amount equal to the product of (Ax) the total amount of such fees and expenses multiplied by (y) a fraction, the numerator of which is the portion of the Year One dollar amount with respect to the Earnout so designated divided by Amount that is contested and that is not awarded to such Party and the denominator of which is the total dollar amount that is contested with respect to the Earnout Amount. (Bv) $9. If Sellers elect Within five (5) Business Days following the determination of any Earnout Statement with respect to receive any portion of the Year Two Earnout Amount in Common Stockaccordance with this Section 1.11(b), the number of shares they Representative shall receive shall be equal to (A) calculate the portion of the Year Two Earnout so designated divided amount then actually allocable to each Company Securityholder pursuant to the Allocation Certificate (without giving effect to the last parenthetical in Section 1.8(a)(v)). (vi) Within five (5) Business Days following the determination of any Earnout Statement with respect to the Earnout Amount in accordance with this Section 1.11(b), Parent shall pay or cause to be paid (a) to the Exchange Agent, by (B) $12. If Sellers elect to receive any portion wire transfer of the Year Three Earnout in Common Stockimmediately available funds, the number of shares they shall receive shall be equal to (A) the portion of the Year Three Earnout so designated divided by (B) $15. The denominators used Amount payable in each respect of the preceding three sentences shares of Company Stock held by the Company Securityholders, (b) to the Surviving Corporation, by wire transfer of immediately available funds, the portion of the Earnout Amount payable in respect of (x) Replacement Awards that have vested in accordance with Section 1.3(c) held by Replacement Award Holders and (y) Vested Options held by holders of Vested Options by wire transfer of immediately available funds, and (c) to the Escrow Agent for deposit into the Unvested Option Escrow Account, by wire transfer of immediately available funds, the portion of the Earnout Amount payable in respect of outstanding but unvested Replacement Awards held by Replacement Award Holders, for further distribution to the Replacement Award Holders upon the vesting of such Replacement Awards or to the Company Securityholders upon the forfeiture of such Replacement Awards, as applicable, pursuant to Section 1.3(c). Any Earnout Amount paid to the Surviving Corporation pursuant to this PARAGRAPH 3.3(H)(IISection 1.11(b)(vi) shall be adjusted distributed to (1) the holders of the Employee Options through a Company Group Member’s payroll system and (2) the holders of the Non-Employee Options through a Company Group Member’s accounts payable system, for each of clauses (1) and (2) no later than the first (1st) regularly scheduled payroll cycle after the date such Earnout Amount is paid to the Surviving Corporation; provided, that any payment of the Earnout Amount that is owed to a holder of In-the-Money Options who is a U.S. taxpayer shall be payable in compliance with Section 409A of the Code, including Treasury Regulation 1.409A-3(i)(5)(iv)(A), to the extent applicable. None of Parent or the Surviving Corporation will have any liability or obligation to any Company Securityholder for any stock splits or other reclassifications and any transaction distribution made in which accordance with the Common Stock is replaced with or exchanged for updated Allocation Certificate provided by the capital stock of a successor subsequent Representative pursuant to the execution of this AgreementSection 1.11(b)(vi).

Earnout Payment Procedures. The procedures for the calculation and payment of the Earnout Payment Amount shall be as follows: (i) Within 5 Business Days after 90 days following the Preliminary Operating Income Determination for any Year becomes end of each of the Final Operating Income Determination for that Yearcalendar years of 2015 and 2016 (i.e., Sellers until March 31, 2016 and March 31, 2017, respectively), Buyer shall notify send the Surviving Corporation in writing as Stockholders’ Representative a statement (each, an “Earnout Statement”) specifying (a) with respect to how they desire to receive the Earnout Payment for that yearStatement sent on or before March 31, if any is due2016 (the “2015 Earnout Statement”) - the 2015 Revenues, setting forth and (Ab) how much with respect to the Earnout Statement sent on or before March 31, 2017 (the “2016 Earnout Statement”) - the 2016 Revenues, as applicable, as well as the calculation of the Earnout Payment they desire Amount, if any, payable hereunder. (ii) The Stockholders’ Representative may object to receive the Earnout Statement, no later than thirty (30) days following delivery thereof, by way of delivering a written notice, executed by the Stockholders’ Representative, to that effect to Buyer, providing details for the grounds for such objection (the “Earnout Objection Notice”). If the Stockholders’ Representative does not timely deliver such Earnout Objection Notice, then the Earnout Statement shall be deemed final and binding for all intents and purposes and Buyer shall transfer the Earnout Payment Amount, if any, specified in Common Stocksuch Earnout Statement within ten (10) Business Days thereafter, to the Company Equityholders (in accordance with the provisions of this Agreement and the allocation set forth in how many certificatesthe Final Payment Spreadsheet). (iii) However, if the Stockholders’ Representative timely delivers such Earnout Objection Notice, then, notwithstanding Section 9.12 hereof, the dispute regarding such amount shall be resolved in the manner set forth in Schedule A hereto. (iv) Buyer shall pay 40% (the “Share Percentage”) of (A) the 2015 Payment, if any (if such payment will be earned and payable based on the 2015 Earnout Statement) in Parent Ordinary Shares (the “2015 Earnout Shares”), the number of which shall equal to the product obtained by dividing (x) the portion payable in Parent Ordinary Shares by (y) the Average Price prior to March 31, 2016; and (B) the 2016 Payment, if any (if such payment will be earned and payable based on the 2016 Earnout Statement) in Parent Ordinary Shares (the “2016 Earnout Shares” and, together with the 2015 Earnout Shares, the “Earnout Shares”), the number of which shall equal to the product obtained by dividing (x) the portion payable in Parent Ordinary Shares by (y) the Average Price prior to March 31, 2017. The balance of the applicable 2015 Payment or 2016 Payment will be payable in cash. (v) Notwithstanding anything to the contrary hereunder, (A) Buyer shall not be required under clause (iv) above to issue Parent Ordinary Shares to any Company Cashholder, (B) how much they desire the Share Percentage may be increased by Parent by up to receive an additional number of Parent Ordinary Shares that, in cashthe absence of the foregoing clause (A), would be issuable to Company Cashholders, (C) delivery instructions for certificates the number of Common StockEarnout Shares together with the Closing Share Consideration and Holdback Share Consideration shall not exceed, in any event, 19.99% of the issued and outstanding Parent Ordinary Shares as of immediately prior to the Closing, and (D) if, at any time prior to the U.S. account or accounts, with wiring instructions, to which they desire any cash portion to be paid (the "SELLERS NOTICE"). The cash portion issuance of any Earnout Shares, Parent is being acquired by a third party, whether by way of a merger, tender offer or otherwise, such that Parent Ordinary Shares will thereafter no longer be publicly traded, then the remaining Earnout Payment Amount, if any, shall be paid, and certificates representing the Common Stock portion of paid solely in cash. (vi) There can be no assurance that any Earnout Payment Amount will become payable hereunder. Without derogating from the generality of the foregoing, it is hereby clarified that, at and from the Closing, the Buyer will assume control of, and have absolute discretion to operate, the Company and its business as it sees fit; provided, however, that during the period following the Closing and December 31, 2016, the Buyer shall not willfully take any actions, nor omit to take any actions, with the exclusive intent of preventing the Earnout Payment Amount from becoming payable hereunder. The exercise of such control and discretion will not entitle the Company Equityholders or anyone on their behalf to assert any claims under this Agreement or otherwise for failure of the Buyer, the Company or any of their Affiliates in satisfying any covenant (implied or express) relating to the operation of the Company and/or the Company’s business following the Closing. Parent, the Buyer, their Affiliates and their Representatives will have and reserve the exclusive authority, power and right at all times to control all aspects of the business and operations of the Company, the Parent, the Buyer or any Affiliate thereof, including the unrestricted discretion to determine to what extent, if any, will any resources be spent in order to develop, sell, market and support any Company Products, the manner in which development, sales and marketing will take place, if any, the budgets that will be dedicated and the acquisition, sale or incorporation of any products, technologies, divisions or operations. Nothing herein shall be delivereddeemed to create or imply any restriction or limitation on the ability of the Parent, by the Surviving Corporation within 5 Business Days of receipt of Sellers Notice. To the extent Sellers have not paid the Surviving Corporation any Shortfall pursuant to PARAGRAPH 3.2(F) Buyer or any Indemnified Losses pursuant Affiliate thereof to PARAGRAPH 11.1pursue any activities or operations of any kind or nature, to enter into, terminate, modify, dispose of or otherwise make any change thereto, or sell any assets or properties. In addition, and without derogating from the Surviving Corporation may deduct such unpaid amounts from any generality of the foregoing, it is hereby clarified that the Earnout Payment without prejudice to Amounts, if any, shall not (i) be certificated, (ii) represent an equity ownership interest in the Company or Parent or any other of their respective Affiliates, (iii) have any voting rights the Surviving Corporation may have against the Sellers with respect to the Shortfall or the Indemnified Lossesdividend rights associated therewith, or (iv) bear any interest. (iivii) If Sellers elect Notwithstanding the foregoing clause (vi), if, following the Closing but prior to receive any portion December 31, 2016, Buyer (or its Affiliates) implements a significant adverse change in the Business of the Year One Company as specified in Schedule 1.8(c)(vii) hereto (each, an “Adverse Change”), then, unless (a) Buyer obtained the Stockholders’ Representative’s prior consent to such an Adverse Change (not to be unreasonably withheld, conditioned or delayed) or (b) such an Adverse Change is required under any applicable Legal Requirement, then an equitable downward adjustment shall be made to the 2015 Target and/or the 2016 Target, as applicable, so that the Earnout Payment Amount, in Common Stockpart or in whole (depending on the appropriate adjustment), may be deemed earned and payable as a result of such equitable adjustment. For the sake of clarity, nothing herein shall prevent Buyer, Parent and/or their Affiliates, including the Company, to take any action that would constitute an Adverse Change. In the event that an Adverse Change is required under clause (b) above, the number Buyer and the Stockholders’ Representative shall work together in good faith to provide the Company Stockholders, if reasonably practicable in light of shares they shall receive such Legal Requirement, with a comparable opportunity to achieve 2015 Target and/or the 2016 Target, as applicable. (viii) Notwithstanding anything to the contrary hereunder, the 2015 Payment, if any, and the 2016 Payment, if any, shall be equal to (A) reduced by the portion amount of the Year One Earnout so designated divided by (B) $9. If Sellers elect to receive any portion of the Year Two Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Two Earnout so designated divided by (B) $12. If Sellers elect to receive any portion of the Year Three Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Three Earnout so designated divided by (B) $15. The denominators used in each of the preceding three sentences of this PARAGRAPH 3.3(H)(II) shall be adjusted for any stock splits or other reclassifications and any transaction in which the Common Stock is replaced with or exchanged for the capital stock of a successor subsequent to the execution of this AgreementContingent Transaction Expenses.

Earnout Payment Procedures. (i) Within 5 Business Days 60 days after the Preliminary Operating Income Determination for any Year becomes Initial Earnout Period and the Final Operating Income Determination Earnout Period, Buyer shall deliver to the Sellers Representative unaudited combined financial statements of the Purchased Companies and ETI Acquisition, with respect to the ETI Business, for that Yearthe Initial Earnout Period and the Final Earnout Period, Sellers shall notify respectively, and calculations setting forth the Surviving Corporation in writing as to how they desire to receive Adjusted EBITDA, New Deal Activity and the Earnout Payments for the respective period (such unaudited combined financial statements and calculations, together, for the respective period, the “Earnout Payment for that yearStatement”). The Sellers Representative and Sellers’ Accountants will be entitled to full access during normal business hours to the relevant records and working papers of the Purchased Companies and ETI Acquisition, if any is duewith respect to the ETI Business, setting forth (A) how much to aid in their review and understanding of the Earnout Payment they desire Statement. Sellers will be solely responsible for all costs of the Sellers’ Accountants. The Earnout Payment Statement shall be deemed to receive be accepted by the Sellers Representative and shall be conclusive for the purposes of determining whether and what Earnout Payments are required pursuant to Section 3.5 and Section 3.6 for the applicable period, unless the Sellers Representative shall have delivered, within 30 days after the date on which any such Earnout Payment Statement is delivered to the Sellers Representative, a written notice from the Sellers Representative to Buyer stating each and every item to which the Sellers Representative takes exception as not being in Common Stockaccordance with GAAP or this Agreement or otherwise being incorrect, specifying in reasonable detail the nature and extent of any such exception. If a change proposed by the Sellers Representative is disputed by Buyer, then Buyer and the Sellers Representative shall negotiate in good faith to resolve such dispute. If, after a period of 10 days following the date on which the Sellers Representative gives Buyer notice of any such proposed change, any such proposed change still remains disputed, then the Accounting Firm shall resolve any remaining disputes. The Accounting Firm shall perform an independent review of the Earnout Payment Statement and also take into account presentations by the Sellers Representative and Sellers’ Accountant and Buyer and its accounting firm, in order to resolve those issues still in dispute. The Accounting Firm shall deliver to the Sellers Representative and Buyer, within 30 days following the date on which the Sellers Representative gave Buyer notice of a proposed change (and which change was subsequently disputed by Buyer and submitted to the Accounting Firm pursuant to this Section 3.5(d)), a report setting forth its findings. The decision of the Accounting Firm shall be final and binding and shall be in accordance with the provisions of this Section 3.5. All of the fees and expenses of the Accounting Firm shall be allocated between Buyer, on the one hand, and in how many certificatesSellers, (B) how much they desire to receive in cash, (C) delivery instructions for certificates of Common Stock, and (D) on the U.S. account or accounts, with wiring instructions, to which they desire any cash portion to be paid (the "SELLERS NOTICE"). The cash portion of any Earnout Payment shall be paid, and certificates representing the Common Stock portion of any Earnout Payment shall be deliveredother hand, by the Surviving Corporation within 5 Business Days of receipt of Sellers Notice. To Accounting Firm based upon the extent Sellers have not paid the Surviving Corporation any Shortfall pursuant to PARAGRAPH 3.2(F) or any Indemnified Losses pursuant to PARAGRAPH 11.1, the Surviving Corporation may deduct such unpaid amounts from any Earnout Payment without prejudice to any other rights the Surviving Corporation may have against the Sellers with respect to the Shortfall or the Indemnified Losses. (ii) If Sellers elect to receive any portion of the Year One Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) percentage which the portion of the Year One Earnout so designated divided by (B) $9. If Sellers elect to receive any portion contested amount resolved in favor of Buyer or Sellers, as the Year Two Earnout in Common Stockcase may be, the number of shares they shall receive shall be equal to (A) the portion of the Year Two Earnout so designated divided by (B) $12. If Sellers elect to receive any portion of the Year Three Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Three Earnout so designated divided by (B) $15. The denominators used in each of the preceding three sentences of this PARAGRAPH 3.3(H)(II) shall be adjusted for any stock splits or other reclassifications and any transaction in which the Common Stock is replaced with or exchanged for the capital stock of a successor subsequent bears to the execution of this Agreementamount actually disputed by such Parties, using the same calculation methodology as described in Section 3.4(b)(i).

Earnout Payment Procedures. (i) Within 5 Business Days after 30 days following the Preliminary Operating Income Determination for any Year becomes the Final Operating Income Determination for that Year, Sellers shall notify the Surviving Corporation in writing as to how they desire to receive end of the Earnout Payment for Period, Acquiror will deliver to the Stockholders’ Agent a statement that year, if any is due, setting forth (A) how much includes Acquiror’s calculation of Calendar-Year 2006 Revenues and each element of the calculation of the Earnout Payment they desire and a statement of the amount, if any, of the Earnout Payment (“Earnout Statement”), together with the backup to receive in Common Stocksupport such calculations. The Stockholders’ Agent, and in how many certificatesother representatives and advisors to Target, (B) how much they desire shall have access to receive in cash, (C) delivery instructions for certificates the books and records of Common Stockthe Target Business and Target Business Unit and to the workpapers and other back-up materials of Acquiror or the Target Business Unit during regular business hours to track and verify each element of the calculation of the Earnout Payment at any time during the Earnout Period, and (D) thereafter through the U.S. account or accounts, with wiring instructions, to which they desire any cash portion to be paid (time of the "SELLERS NOTICE"). The cash portion resolution by the parties of any Earnout Payment shall be paid, and certificates representing the Common Stock portion of any Earnout Payment shall be delivered, by the Surviving Corporation within 5 Business Days of receipt of Sellers Notice. To the extent Sellers have not paid the Surviving Corporation any Shortfall pursuant to PARAGRAPH 3.2(F) or any Indemnified Losses pursuant to PARAGRAPH 11.1, the Surviving Corporation may deduct such unpaid amounts from any Earnout Payment without prejudice to any other rights the Surviving Corporation may have against the Sellers with respect objections to the Shortfall or Earnout Statement. Acquiror shall instruct Acquiror’s accountants and members of its finance department to cooperate with representatives of Target in reviewing and analyzing the Indemnified LossesEarnout Statement. (ii) If Sellers elect The amount of the Earnout Payment (or the calculation and statement that no Earnout Payment is due under this Section 2.8) set forth in the Earnout Statement shall be binding on the Stockholders, unless the Stockholders’ Agent presents to receive Acquiror within 30 days after the date the Stockholders’ Agent receives the applicable Earnout Statement (the “Earnout Objection Deadline”) written notice of disagreement specifying in reasonable detail (to the extent then known) the nature and extent of the disagreement and the Stockholders’ Agent’s calculation of the applicable Earnout Payment amount (including, if then known, a statement with each element of the Stockholders’ Agent’s calculation thereof) (the “Earnout Objection Statement”). Acquiror and the Stockholders’ Agent shall attempt in good faith during the ten days immediately following Acquiror’s timely receipt of the Earnout Objection Statement to resolve any disagreement with respect to such Earnout Payment (the “Earnout Dispute Resolution Period”). Acquiror shall be entitled to require that the Stockholders’ Agent sign a customary form of non-disclosure or confidentiality agreement (which may include an obligation extending the Stockholders’ Agent’s confidentiality obligation to its representatives and advisors) in order to protect the confidentiality of its books and records. (iii) If, at the end of the Earnout Dispute Resolution Period, Acquiror and the Stockholders’ Agent have not resolved all disagreements with respect to the calculation of the Earnout Payment, Acquiror and the Stockholders’ Agent will refer the items of disagreement for determination to the Independent Accounting Firm, and the parties will be reasonably available and work diligently to facilitate the Independent Accounting Firm rendering a determination within the 20-day period immediately following the referral to the Independent Accounting Firm. A determination by the Independent Accounting Firm with respect to any item of disagreement submitted to it will be binding on Acquiror and the Stockholders. The Independent Accounting Firm, Acquiror and Stockholders’ Agent will enter into such engagement letters as may be reasonably required by the Independent Accounting Firm to perform under this Section 2.8(d)(iii). The fees and disbursements of the Independent Accounting Firm under this Section 2.8(d)(iii) will be borne equally by the Acquiror and the Target Stockholders collectively and any such amounts payable by the Stockholders shall be deducted from the Escrow Account or Earnout Payment, if any; provided that if the Independent Accounting Firm determines one party has adopted a position or positions with respect to the Earnout Statement that is frivolous or clearly without merit, the Independent Accounting Firm may, in its discretion, assign a greater portion of the Year One Earnout in Common Stock, the number of shares they shall receive shall be equal any such fees and expenses to (A) the portion of the Year One Earnout so designated divided by (B) $9. If Sellers elect to receive any portion of the Year Two Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Two Earnout so designated divided by (B) $12. If Sellers elect to receive any portion of the Year Three Earnout in Common Stock, the number of shares they shall receive shall be equal to (A) the portion of the Year Three Earnout so designated divided by (B) $15. The denominators used in each of the preceding three sentences of this PARAGRAPH 3.3(H)(II) shall be adjusted for any stock splits or other reclassifications and any transaction in which the Common Stock is replaced with or exchanged for the capital stock of a successor subsequent to the execution of this Agreementsuch party.