Common use of Earnout Procedures Clause in Contracts

Earnout Procedures. (a) Acquirors shall provide the PC Seller with a statement (an “Earnout Statement”) setting forth Acquiror’s calculation of the Earnout Payment, if any, and Supplemental Earnout Payment, if any, due PC Seller, within seventy five (75) days after the end of each of the Earnout Measurement Period and the Supplemental Earnout Measurement Period, as applicable, together with reasonably detailed financial information supporting each such calculation. Acquirors agree to promptly provide Seller with any additional detailed financial information Seller requests and that is reasonably related to either the methodology by which the Earnout Payment or the Supplemental Earnout Payment is calculated, including the methodology by which revenue is accrued, or the specific items of revenue and expense that affect each such calculation. Seller shall have the right to engage an accounting expert, at Seller’s sole cost and expense, to advise Seller in the evaluation of the information provided by Acquirors. Continued employment by Owners with PC Buyer is not required for receipt by Seller of any Earnout Payment or Supplemental Earnout Payment, to the extent such payments are otherwise earned and payable. After receipt of the applicable Earnout Statement, PC Seller shall have thirty (30) days to review the applicable Earnout Statement. If, during such thirty (30) day period, PC Seller notifies Acquirors in writing of its objection to the Earnout Statement (the “Objection Notice”), Acquirors and PC Seller agree, within thirty (30) days (or such longer period as the parties may agree) following such Objection Notice, to negotiate in good faith for a period of thirty (30) days in an attempt to establish a mutually acceptable Earnout Payment or Supplemental Earnout Payment, as applicable. Any resolution by PC Seller and Acquirors as to any disputed Earnout Payment or Supplemental Earnout Payment shall be set forth in a writing executed by the PC Seller and Acquirors, and shall evidence the final, binding and conclusive resolution of the parties relating to such payment, including the timing of such payment.

Earnout Procedures. As soon as practicable (abut in any event within five (5) Acquirors days) after the filing of the Company’s quarterly financial statements on SEC Form 10-Q for the fiscal quarter ending on the applicable Measurement Date or, the annual financial statements on SEC Form 10-K (which, in each case, for the avoidance of doubt, shall provide be adjusted to reflect any pro forma adjustments pursuant to the PC calculation of “Consolidated EBITDA” (including all “add-backs” and adjustments provided therein) (but subject to the Measurement Methodologies) set forth in the Term Loan Agreement (as amended and supplemented through the date hereof)) for the fiscal year ending on the applicable Measurement Date, the Parent’s Chief Financial Officer (the “CFO”) will prepare and deliver to the Parent Representative and Seller with Representative a written statement (each, an “Earnout Statement”) setting that sets forth Acquirorthe CFO’s determination in accordance with the terms of this Article II of the EBITDA (measured as of the Measurement Date and using the Measurement Methodologies) for such Earnout Year based on the financial statements included in such Form 10-Q or Form 10-K (which, in each case, for the avoidance of doubt, shall be adjusted to reflect any pro forma adjustments pursuant to the calculation of “Consolidated EBITDA” (including all “add-backs” and adjustments provided therein) (but subject to the Earnout Payment, if anyMeasurement Methodologies) set forth in the Term Loan Agreement (as amended and supplemented through the date hereof)), and Supplemental whether the Company Securityholders are entitled to receive a Regular Earnout PaymentPayment for such Earnout Year and any Catchup Earnout Payment for a prior Earnout Year or an Accelerated Earnout Payment for a subsequent Earnout Year, and the amount of such Earnout Payment that constitutes an Earnout Cash Payment Shortfall based on the information available at such time; provided, that, with respect to any Earnout Statement delivered for any Measurement Date within the first three (3) fiscal quarters of 2018, (i) EBITDA for each of the second and third fiscal quarters of 2017 will be based, in the first instance, on the Company’s consolidated reviewed financial statement for fiscal year 2017 if anyavailable as of the applicable Measurement Date), due PC Selleror if such audited financial statements are not yet available as of the applicable Measurement Date, within seventy five then, in the second instance, on the financial statements included in the Registration Statement (75which, in each case, for the avoidance of doubt, shall be adjusted to reflect any pro forma adjustments pursuant to the calculation of “Consolidated EBITDA” (including all “add-backs” and adjustments provided therein) (but subject to the Measurement Methodologies) set forth in the Term Loan Agreement (as amended and supplemented through the date hereof)), and (ii) EBITDA for the fourth quarter of 2017 will be based, in the first instance on the Company’s audited financial statements for fiscal year 2017 (if available as of the applicable Measurement Date), or if such audited financial statements are not yet available as of the applicable Measurement Date, then, in the second instance, on the Company’s reviewed financial statement for the fourth fiscal quarter of 2017 (which, in each case, for the avoidance of doubt, shall be adjusted to reflect any pro forma adjustments pursuant to the calculation of “Consolidated EBITDA” (including all “add-backs” and adjustments provided therein) (but subject to the Measurement Methodologies) set forth in the Term Loan Agreement (as amended and supplemented through the date hereof)). Each of the Parent Representative and the Seller Representative will have fifteen (15) days after its receipt of an Earnout Statement to review it. To the end extent reasonably required to complete their respective reviews of such Earnout Statement, the Parent and its Subsidiaries will provide each of the Earnout Measurement Period Parent Representative and the Supplemental Seller Representative and their respective Representatives with reasonable access to the books and records of the Parent and its Subsidiaries, their respective finance personnel and any other information that the Parent Representative or the Seller Representative reasonably requests relating to the determination of the EBITDA, the Regular Earnout Measurement PeriodPayment for such Earnout Year, any Catchup Earnout Payment for a prior Earnout Year, an Accelerated Earnout Payment for a subsequent Earnout Year and any Earnout Cash Payment Shortfall. In addition, and without limiting the foregoing, upon request of either Parent Representative or the Seller Representative, the CFO shall provide a written statement setting forth in reasonable detail the calculation of EBITDA as applicable, together with reasonably detailed financial information supporting each set forth in the applicable Earnout Statement and reasonable documentary support reflecting the basis of such calculation. Acquirors agree to promptly provide Seller with any additional detailed financial information Seller requests and that is reasonably related to either Either the methodology by which the Earnout Payment Parent Representative or the Supplemental Seller Representative may deliver written notice to the CFO (by providing notice to the Parent to the attention of the CFO) and the other Party on or prior to the fifteen (15th) day after receipt of an Earnout Payment is calculated, including Statement specifying in reasonable detail any items that they wish to dispute and the methodology by which revenue is accrued, basis therefor. If the Seller Representative or the specific items of revenue and expense that affect each Parent Representative fails to deliver such calculation. Seller shall have the right to engage an accounting expert, at Seller’s sole cost and expense, to advise Seller written notice in the evaluation of the information provided by Acquirors. Continued employment by Owners with PC Buyer is not required for receipt by Seller of any Earnout Payment or Supplemental Earnout Payment, to the extent such payments are otherwise earned and payable. After receipt of the applicable Earnout Statement, PC Seller shall have thirty fifteen (30) days to review the applicable Earnout Statement. If, during such thirty (3015) day period, PC then such Party will have waived its right (and, with respect to the Seller notifies Acquirors in writing Representative, the right of the Company Securityholders, and, with respect to the Parent Representative, the right of the Parent or its objection Subsidiaries) to contest such Earnout Statement and the calculations set forth therein of the EBITDA, the Regular Earnout Payment for such Earnout Year, any Catchup Earnout Payment for a prior Earnout Year or an Accelerated Earnout Payment for a subsequent Earnout Year. If either the Parent Representative or the Seller Representative provides the CFO and the other Party with written notice of any objections to the Earnout Statement in such fifteen (15) day period, then the “Objection Notice”)Seller Representative and the Parent Representative will, Acquirors and PC Seller agree, within thirty (30) days (or such longer period as the parties may agree) following such Objection Notice, to negotiate in good faith for a period of thirty twenty (3020) days in an following the date of delivery of such notice, attempt to establish a mutually acceptable Earnout Payment or Supplemental Earnout Payment, as applicable. Any resolve their differences and any written resolution by PC Seller and Acquirors them as to any disputed amount will be final and binding for all purposes under this Agreement. If at the conclusion of such twenty (20) day period the Seller Representative and the Parent Representative have not reached an agreement on any objections with respect to the Earnout Payment or Supplemental Earnout Payment shall be Statement, then upon the written request of either Party the Parties will refer the dispute to the Independent Expert for final resolution of the dispute in accordance with the dispute resolution procedures set forth in Section 1.12(b) (with any reference therein to the Closing Statement instead referring to the applicable Earnout Statement in dispute). The Parties acknowledge that any information provided pursuant to this Section 2.2 will be subject to the confidentiality obligations of Section 6.14. The Parent hereby agrees during the Earnout Period to use its reasonable best efforts to maintain a writing executed by the PC Seller and Acquirors, and shall evidence the final, binding and conclusive resolution of financial reporting system that enables the parties relating to such payment, including calculate the timing EBITDA and Earnout Payments for purposes of such paymentthis Article II.

Earnout Procedures. As soon as practicable (abut in any event within 15 days) Acquirors shall provide after the PC completion of the audited consolidated financial statements of Buyer and its Subsidiaries (prepared in accordance with GAAP and filed with the SEC) for each Earnout Year, Buyer’s Chief Financial Officer (the “CFO”) will prepare and deliver to the Seller with Representative a written statement (each, an “Earnout Statement”) setting that sets forth Acquirorthe CFO’s calculation determination in accordance with the terms of this Section 2.6 of the Adjusted EBITDA and Revenue for such Earnout Payment, if anyYear based on such audited financial statements, and Supplemental whether the Company Stockholders are entitled to receive any Earnout Payment, if any, due PC Seller, within seventy five (75) Shares for such Earnout Year. The Seller Representative will have 30 days after the end its receipt of each of the an Earnout Measurement Period and the Supplemental Earnout Measurement Period, as applicable, together with reasonably detailed financial information supporting each such calculationStatement to review it. Acquirors agree to promptly provide Seller with any additional detailed financial information Seller requests and that is reasonably related to either the methodology by which the Earnout Payment or the Supplemental Earnout Payment is calculated, including the methodology by which revenue is accrued, or the specific items of revenue and expense that affect each such calculation. Seller shall have the right to engage an accounting expert, at Seller’s sole cost and expense, to advise Seller in the evaluation of the information provided by Acquirors. Continued employment by Owners with PC Buyer is not required for receipt by Seller of any Earnout Payment or Supplemental Earnout Payment, to To the extent such payments are otherwise earned and payable. After receipt reasonably required to complete its review of the applicable an Earnout Statement, PC Buyer and its Subsidiaries will provide the Seller shall have thirty (30) days Representative and its Representatives with reasonable access to review the applicable books and records of Buyer and its Subsidiaries, their respective finance personnel and any other information that the Seller Representative reasonably requests relating to the determination of Adjusted EBITDA, Revenue or the Earnout StatementShares issuable for such Earnout Year. If, during The Seller Representative may deliver written notice to the CFO and Buyer on or prior to the 30th day after receipt of an Earnout Statement specifying in reasonable detail any items that it wishes to dispute and the basis therefor. If the Seller Representative fails to deliver such thirty (30) written notice in such 30 day period, PC the Seller notifies Acquirors in writing of Representative shall have waived its objection right to the contest such Earnout Statement (and the “Objection Notice”)calculations set forth therein of the Adjusted EBITDA, Acquirors Revenue or Earnout Shares for such Earnout Year. If the Seller Representative provides the CFO and PC Buyer with written notice of any objections to an Earnout Statement in such 30 day period, then the Seller agreeRepresentative and the Buyer Representative will, within thirty (30) days (or such longer period as the parties may agree) following such Objection Notice, to negotiate in good faith for a period of thirty (30) 20 days in an following the date of delivery of such notice, attempt to establish a mutually acceptable Earnout Payment or Supplemental Earnout Payment, as applicable. Any resolve the Seller Representative’s objections and any written resolution by PC Seller and Acquirors them as to any disputed amount will be final and binding for all purposes under this Agreement. If at the conclusion of such 20 day period the Seller Representative and the Buyer Representative have not reached an agreement on all the Seller Representative’s objections with respect to the Earnout Payment or Supplemental Earnout Payment shall be Statement, then upon the written request of either party, the parties will refer the dispute to the Independent Expert for final resolution in accordance with the procedures set forth in Section 2.6(e). Buyer hereby agrees during the Earnout Period to use its reasonable best efforts to maintain a writing executed by the PC Seller and Acquirors, and shall evidence the final, binding and conclusive resolution of financial reporting system that enables the parties relating to such paymentcalculate the Adjusted EBITDA, including the timing Revenue and Earnout Shares for purposes of such paymentthis Section 2.6.

Earnout Procedures. (a) Acquirors shall provide the PC Seller with a statement (an “Earnout Statement”) setting forth Acquiror’s calculation of the Earnout Payment, if any, and Supplemental Earnout Payment, if any, due PC Seller, within seventy five (75) days after the end of each of the Earnout Measurement Period and the Supplemental Earnout Measurement Period, as applicable, together with reasonably detailed financial information supporting each such calculation. Acquirors agree to promptly provide Seller with any additional detailed financial information Seller requests and that is reasonably related to either the methodology by which the Earnout Payment or the Supplemental Earnout Payment is calculated, including the methodology by which revenue is accrued, or the specific items of revenue and expense that affect each such calculation. Seller shall have the right to engage an accounting expert, at Seller’s sole cost and expense, to advise Seller in the evaluation of the information provided by Acquirors. Continued employment by Owners with PC Buyer is not required for receipt by Seller of any Earnout Payment or Supplemental Earnout Payment, to the extent such payments are otherwise earned and payable. After receipt of the applicable Earnout Statement, PC Seller shall have thirty (30) days to review the applicable Earnout Statement. If, during such thirty (30) day period, PC Seller notifies Acquirors in writing of its objection to the Earnout Statement (the “Objection Notice”), Acquirors and PC Seller agree, within thirty (30) days (or such longer period as the parties may agree) following such Objection Notice, to negotiate in good faith for a period of thirty (30) days in an attempt to establish a mutually acceptable Earnout Payment or Supplemental Earnout Payment, as applicable. Any resolution by PC Seller and Acquirors as to any disputed Earnout Payment or Supplemental Earnout Payment shall be set forth in a writing executed by the PC Seller and Acquirors, and shall evidence the final, binding and conclusive resolution of the parties relating to such payment, including the timing of such payment.