Common use of Earnout Statements Clause in Contracts

Earnout Statements. (i) Within sixty (60) days after the end of each calendar quarter during the Earnout Period, and within sixty (60) days after the end of the Earnout Period with respect to the final portion of the Earnout Period, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a statement (each an “Earnout Statement”) setting forth its calculation of the Earnout Amount for the period covered by such Earnout Statement. The first Earnout Statement will cover the period from the Closing Date through September 30, 2017. (ii) Within thirty (30) days following delivery by Buyer of each Earnout Statement, Seller shall deliver written notice to Buyer of any good faith disagreement that Seller has with respect to the contents of such Earnout Statement, which notice explains, in reasonable detail with supporting documentation, the basis for its disagreement. If Seller does not notify Buyer in writing of a disagreement with respect to such Earnout Statement within such fifteen (15) day period, then such Earnout Statement shall be deemed agreed to by, and be final, conclusive and binding on, the Parties. If Seller delivers a notice of disagreement within such fifteen (15) day period, then Buyer and Seller shall negotiate in good faith to resolve any such disagreement (but any matter as to which Seller has not disagreed shall be deemed agreed to by, and be final, conclusive and binding on, the Parties). If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disagreement within thirty (30) days after Seller notifies Buyer of its disagreement, then either Party may submit the dispute for final and binding resolution to a nationally recognized certified public accounting firm with expertise in the mortgage lending industry which has not previously been engaged by such Party or its Affiliates for a period of two (2) years prior to such firm’s engagement hereunder to resolve such disagreement (the “Accounting Arbitrator”). The Accounting Arbitrator shall be selected by mutual agreement of Buyer and Seller. The determination of the Accounting Arbitrator shall be final, conclusive and binding on the Parties absent manifest arithmetic error. The fees of the Accounting Arbitrator shall be borne by the Party that does not prevail in the arbitration, as determined by the Accounting Arbitrator based on which Party’s position with respect to the contested elements of the disputed Earnout Statement, in the aggregate, was closest numerically to the Accounting Arbitrator’s position, in the aggregate. (iii) During the thirty (30) days following delivery of each Earnout Statement and any subsequent period during which the Parties are negotiating in good faith to resolve disagreements or the Accounting Arbitrator is reviewing the dispute, Seller and its Representatives shall be permitted, upon reasonable advance notice and subject to such reasonable conditions as Buyer may impose, to review Buyer’s working papers and the working papers of Buyer’s independent accountants, if any, relating to the preparation of such Earnout Statement and the calculation of the Earnout Amount therein, as well as the relevant books and records of Buyer; provided that the independent accountants of Buyer shall not be obligated to make any working papers available to Seller or its Representative unless and until Seller and/or its Representative has signed a confidentiality and hold harmless agreement relating to such access to working papers in form and substance acceptable to such independent accountants.

Earnout Statements. (i) Within Not later than sixty (60) days after following the end of each calendar quarter during the Earnout Period, and within sixty (60) days after the end of the Earnout Period with respect to the final portion expiration of the Earnout Period, the Buyer or its Representatives shall prepare and deliverdeliver to the Earnout Holders a written statement, or cause to be prepared and deliveredin accordance with GAAP, to Seller a statement setting forth the Buyer’s calculation of the Company’s ARR during the Earnout Period (each an the “Earnout Statement”), including without limitation the attribution of the Cash Earnout Amount payable to each Cash Earnout Holder and the Equity Earnout Shares to be issued to each Equity Earnout Holder individually. Upon receipt of an Earnout Statement, the Earnout Holders and/or their accountants will be given reasonable access upon reasonable notice to Buyer to the Company’s relevant books, records, workpapers and personnel during normal business hours solely for the purpose of verifying the Company’s ARR. Upon request of Buyer, the Earnout Holders and/or their accountants shall execute and deliver a confidentiality agreement, in form and substance reasonably satisfactory to Buyer, prior to accessing the Company’s books, records, workpapers and/or personnel. (ii) Prior to the date which is thirty (30) days after the Buyer’s delivery of an Earnout Statement (the “Earnout Protest Deadline“), the Earnout Holders may deliver written notice to the Buyer (an “Earnout Protest Notice“) setting forth its calculation of any objections which the Earnout Amount for the period covered by Holder may have to such Earnout Statement. The first sole permissible grounds for objection shall be that the Company’s ARR set forth on such Earnout Statement will cover was not calculated in accordance with the period from definition set forth in Section 2.06(b)(i) or where any calculation or accounting error has been identified in the Closing Date through September 30computation of the same. An Earnout Protest Notice shall specify in reasonable detail any contested amounts and the basis therefor and shall include a schedule setting forth the Seller’s determination of the Company’s ARR. If an Earnout Protest Notice is not delivered prior to the Earnout Protest Deadline, 2017the Company’s ARR as set forth on such Earnout Statement shall be final, binding and non-appealable by the Earnout Holder. If an Earnout Protest Notice is delivered prior to the Earnout Protest Deadline, any such amounts not disputed therein shall be final, binding and non-appealable by the Earnout Holder. For the avoidance of doubt, notwithstanding the beneficial interest that the Earnout Holder may have in the Cash Earnout Amount and the Equity Earnout Shares, the Earnout Holders shall have the joint and several right to render an Earnout Protest Notice to dispute the Earnout Statements. (iiiii) Within The Buyer and the Earnout Holders shall confer and attempt to resolve any disagreement with respect to an Earnout Statement within thirty (30) days following delivery by Buyer the Buyer’s receipt of each an Earnout Statement, Seller shall deliver written notice to Buyer of any good faith disagreement that Seller has with respect to the contents of such Earnout Statement, which notice explains, in reasonable detail with supporting documentation, the basis for its disagreementProtest Notice. If Seller does not notify the Buyer in writing of a and the Earnout Holders are unable to resolve any such disagreement with respect to such Earnout Statement within such fifteen thirty (1530) day period, then any matters that remain in dispute will be referred to the Independent Accountant, which will be instructed to determine the amounts in dispute within forty-five (45) days after such referral. The determination by the Independent Accountant of the amounts in dispute shall be based solely on presentations by the Buyer and the Earnout Holders, and shall not involve the Independent Accountant’s independent review. Any determination by the Independent Accountant shall not be outside the range defined by the respective amounts in such Earnout Statement shall be deemed agreed to byproposed by the Buyer and the Earnout Holders’ proposed adjustments thereto set forth in the Earnout Protest Notice, and be final, conclusive and binding on, the Parties. If Seller delivers a notice of disagreement within absent manifest mathematical error such fifteen (15) day period, then Buyer and Seller shall negotiate in good faith to resolve any such disagreement (but any matter as to which Seller has not disagreed shall be deemed agreed to by, and be final, conclusive and binding on, the Parties). If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disagreement within thirty (30) days after Seller notifies Buyer of its disagreement, then either Party may submit the dispute for final and binding resolution to a nationally recognized certified public accounting firm with expertise in the mortgage lending industry which has not previously been engaged by such Party or its Affiliates for a period of two (2) years prior to such firm’s engagement hereunder to resolve such disagreement (the “Accounting Arbitrator”). The Accounting Arbitrator shall be selected by mutual agreement of Buyer and Seller. The determination of the Accounting Arbitrator shall be final, conclusive binding and binding non-appealable. Each of the Buyer and the Earnout Holders shall execute and deliver a customary engagement letter as may be requested by the Independent Accountant, and each of the Buyer, on the Parties absent manifest arithmetic error. The fees one hand, and the Earnout Holders (jointly and severally) on the other hand, shall bear that percentage of the Accounting Arbitrator shall be borne by fees and expenses of the Party that does not prevail in Independent Accountant equal to the arbitration, proportion (expressed as a percentage and determined by the Accounting Arbitrator based on which Party’s position with respect to Independent Accountant) of the contested elements dollar value of the disputed Earnout Statement, amounts determined in the aggregate, was closest numerically to the Accounting Arbitrator’s position, in the aggregate. (iii) During the thirty (30) days following delivery of each Earnout Statement and any subsequent period during which the Parties are negotiating in good faith to resolve disagreements or the Accounting Arbitrator is reviewing the dispute, Seller and its Representatives shall be permitted, upon reasonable advance notice and subject to such reasonable conditions as Buyer may impose, to review Buyer’s working papers and the working papers of Buyer’s independent accountants, if any, relating to the preparation of such Earnout Statement and the calculation favor of the Earnout Amount therein, as well as other party by the relevant books and records of Buyer; provided that the independent accountants of Buyer shall not be obligated to make any working papers available to Seller or its Representative unless and until Seller and/or its Representative has signed a confidentiality and hold harmless agreement relating to such access to working papers in form and substance acceptable to such independent accountantsIndependent Accountant.

Earnout Statements. As soon as practicable after the end of each Earnout Measurement Period, and in any event prior to ninety (i) Within sixty (6090) days after the end of each calendar quarter during the Earnout Period, and within sixty (60) days after the end of the Earnout Period with respect to the final portion of the Earnout Measurement Period, Buyer shall prepare and deliver, or will cause to be prepared in writing and delivered, delivered to Seller (i) the Consolidated Income Statement for such Earnout Measurement Period and (ii) a statement (each an “the "Earnout Statement”") setting forth each Computed Amount for such Earnout Measurement Period. Buyer shall provide (or cause the Companies to provided) to Seller and its calculation designees reasonable access during normal business times to all materials, records and personnel of the Earnout Companies and the Business necessary for Seller to verify the correctness of each such Consolidated Income Statement and each such Computed Amount for the period covered and compliance by such Earnout StatementBuyer with this Section 2.8. The first Subject to Section 2.8(i), each Consolidated Income Statement and each Earnout Statement will cover be final and binding on Buyer and Seller to the period from the Closing Date through September 30extent of information disclosed to Seller at such time unless, 2017. (ii) Within within thirty (30) days following the delivery by Buyer of each the Earnout Statement, Seller notifies Buyer in writing that Seller does not accept as correct any one or more of the Computed Amounts set forth in the Earnout Statement (the "Earnout Protest Letter") and setting forth in reasonable detail the amounts in dispute and the reasons therefor. Except for the matters specifically set out in the Earnout Protest Letter, Seller shall deliver written notice be deemed to have agreed to the Earnout Statement to the extent of information disclosed to Seller at such time. If Seller timely delivers an Earnout Protest Letter, then Seller and Buyer of any shall meet by telephone, or at a mutually agreeable location, to discuss in good faith disagreement that Seller has and attempt to reconcile their differences with respect to the contents amount of such Earnout Statement, which notice explains, in reasonable detail with supporting documentation, the basis for its disagreement. If Seller does not notify Buyer in writing of a disagreement with respect to such Earnout Statement within such fifteen (15) day period, then such Earnout Statement shall be deemed agreed to by, and be final, conclusive and binding on, the Parties. If Seller delivers a notice of disagreement within such fifteen (15) day period, then Buyer and Seller shall negotiate in good faith to resolve any such disagreement (but any matter as to which Seller has not disagreed shall be deemed agreed to by, and be final, conclusive and binding on, the Parties). If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disagreement within thirty (30) days after Seller notifies Buyer of its disagreement, then either Party may submit the dispute for final and binding resolution to a nationally recognized certified public accounting firm with expertise in the mortgage lending industry which has not previously been engaged Computed Amounts that are being challenged by such Party or its Affiliates for a period of two (2) years prior to such firm’s engagement hereunder to resolve such disagreement (the “Accounting Arbitrator”). The Accounting Arbitrator shall be selected by mutual agreement of Buyer and Seller. The determination of the Accounting Arbitrator shall be final, conclusive and binding on the Parties absent manifest arithmetic error. The fees of the Accounting Arbitrator shall be borne by the Party that does not prevail in the arbitration, as determined by the Accounting Arbitrator based on which Party’s position with respect to the contested elements of the disputed Earnout Statement, in the aggregate, was closest numerically to the Accounting Arbitrator’s position, in the aggregate. (iii) During the thirty (30) days following delivery of each Earnout Statement and any subsequent period during which the Parties are negotiating in good faith to resolve disagreements or the Accounting Arbitrator is reviewing the dispute, Seller and its Representatives shall be permitted, upon reasonable advance notice and subject to such reasonable conditions as Buyer may impose, to review Buyer’s working papers and the working papers of Buyer’s independent accountants, if any, relating to the preparation of such Earnout Statement and the calculation of the Earnout Amount therein, as well as the relevant books and records of Buyer; provided that the independent accountants of Buyer shall not be obligated to make any working papers available pay to Seller or its Representative unless and until Seller and/or its Representative has signed a confidentiality and hold harmless agreement relating to such access to working papers any amounts that are not in form and substance acceptable to such independent accountantsdispute.

Earnout Statements. As soon as practicable after the end of each Earnout Measurement Period, and in any event prior to ninety (i) Within sixty (6090) days after the end of each calendar quarter during the Earnout Period, and within sixty (60) days after the end of the Earnout Period with respect to the final portion of the Earnout Measurement Period, Buyer shall prepare and deliver, or will cause to be prepared in writing and delivered, delivered to Seller (i) the Consolidated Income Statement for such Earnout Measurement Period and (ii) a statement (each an the “Earnout Statement”) setting forth each Computed Amount for such Earnout Measurement Period. Buyer shall provide (or cause the Companies to provided) to Seller and its calculation designees reasonable access during normal business times to all materials, records and personnel of the Earnout Companies and the Business necessary for Seller to verify the correctness of each such Consolidated Income Statement and each such Computed Amount for the period covered and compliance by such Earnout StatementBuyer with this Section 2.8. The first Subject to Section 2.8(i), each Consolidated Income Statement and each Earnout Statement will cover be final and binding on Buyer and Seller to the period from the Closing Date through September 30extent of information disclosed to Seller at such time unless, 2017. (ii) Within within thirty (30) days following the delivery by Buyer of each the Earnout Statement, Seller notifies Buyer in writing that Seller does not accept as correct any one or more of the Computed Amounts set forth in the Earnout Statement (the “Earnout Protest Letter”) and setting forth in reasonable detail the amounts in dispute and the reasons therefor. Except for the matters specifically set out in the Earnout Protest Letter, Seller shall deliver written notice be deemed to have agreed to the Earnout Statement to the extent of information disclosed to Seller at such time. If Seller timely delivers an Earnout Protest Letter, then Seller and Buyer of any shall meet by telephone, or at a mutually agreeable location, to discuss in good faith disagreement that Seller has and attempt to reconcile their differences with respect to the contents amount of such Earnout Statement, which notice explains, in reasonable detail with supporting documentation, the basis for its disagreement. If Seller does not notify Buyer in writing of a disagreement with respect to such Earnout Statement within such fifteen (15) day period, then such Earnout Statement shall be deemed agreed to by, and be final, conclusive and binding on, the Parties. If Seller delivers a notice of disagreement within such fifteen (15) day period, then Buyer and Seller shall negotiate in good faith to resolve any such disagreement (but any matter as to which Seller has not disagreed shall be deemed agreed to by, and be final, conclusive and binding on, the Parties). If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disagreement within thirty (30) days after Seller notifies Buyer of its disagreement, then either Party may submit the dispute for final and binding resolution to a nationally recognized certified public accounting firm with expertise in the mortgage lending industry which has not previously been engaged Computed Amounts that are being challenged by such Party or its Affiliates for a period of two (2) years prior to such firm’s engagement hereunder to resolve such disagreement (the “Accounting Arbitrator”). The Accounting Arbitrator shall be selected by mutual agreement of Buyer and Seller. The determination of the Accounting Arbitrator shall be final, conclusive and binding on the Parties absent manifest arithmetic error. The fees of the Accounting Arbitrator shall be borne by the Party that does not prevail in the arbitration, as determined by the Accounting Arbitrator based on which Party’s position with respect to the contested elements of the disputed Earnout Statement, in the aggregate, was closest numerically to the Accounting Arbitrator’s position, in the aggregate. (iii) During the thirty (30) days following delivery of each Earnout Statement and any subsequent period during which the Parties are negotiating in good faith to resolve disagreements or the Accounting Arbitrator is reviewing the dispute, Seller and its Representatives shall be permitted, upon reasonable advance notice and subject to such reasonable conditions as Buyer may impose, to review Buyer’s working papers and the working papers of Buyer’s independent accountants, if any, relating to the preparation of such Earnout Statement and the calculation of the Earnout Amount therein, as well as the relevant books and records of Buyer; provided that the independent accountants of Buyer shall not be obligated to make any working papers available pay to Seller or its Representative unless and until Seller and/or its Representative has signed a confidentiality and hold harmless agreement relating to such access to working papers any amounts that are not in form and substance acceptable to such independent accountantsdispute.

Earnout Statements. (i) Within sixty (60) No later than 45 days after the end expiration of each calendar quarter during the Earnout Period, and within sixty (60) days after the end of the Earnout Period with respect to the final portion of the Earnout Measurement Period, Buyer shall prepare and deliver, or cause deliver to be prepared and delivered, to Seller the Member a statement that reflects, in reasonable detail, EBITDA for such Earnout Measurement Period (each an the “Earnout Statement”) setting forth its calculation of along with reasonable supporting documentation, and the resulting Earnout Amount for the period covered Funds payable by Buyer in relation to such Earnout Statement. The first Earnout Statement will cover the period from the Closing Date through September 30Measurement Period, 2017if any. (ii) Within thirty If the Member has any objections to the calculation of EBITDA and the resulting Earnout Funds prepared by Xxxxx, then the Member shall deliver a detailed written statement (30the “Earnout Objection”) describing the objections to Buyer within 30 days following after delivery by Buyer of each the Earnout Statement; provided, Seller however, such 30-day period shall deliver written notice be extended for an additional 30 days if Buyer has not provided timely access to the information needed to confirm Buyer’s calculation of EBITDA. During such 30-day period, the Member and his accountants shall have reasonable access to the books and records of the Company, the personnel of, and the work papers prepared by, Xxxxx and/or Buyer’s accountants (subject to the execution of customary non-reliance or non-disclosure agreements) to the extent they relate to Earnout Statement and the calculations set forth therein and such other historical financial information relating to the Earnout Statement and the calculations set forth therein as the Member may reasonably request for the purpose of reviewing the Earnout Statement and to draft the Earnout Objection;provided, however, that (A) such access shall be in a manner that does not unreasonably interfere with the normal business operations of Buyer or the Company, (B) the provision of any good faith disagreement information pursuant to this Section 1.6(d) will be subject to appropriate confidentiality undertakings and (C) nothing in this Section 1.6(d) will require the disclosure of any information that Seller has with respect is subject to the contents attorney-client or any other privilege (based on the written advice of such Earnout Statement, which notice explains, in reasonable detail with supporting documentation, the basis for its disagreementPerson’s outside legal counsel). If Seller does not notify Buyer in writing of a disagreement with respect the Member fails to such deliver an Earnout Statement Objection within such fifteen (15) 30-day period, then such the calculation of EBITDA for the applicable Earnout Measurement Period and the resulting Earnout Funds set forth in the Earnout Statement shall be deemed agreed to by, and be final, conclusive final and binding on, on Buyer and the PartiesMember. If Seller the Member delivers a notice of disagreement an Earnout Objection within such fifteen (15) 30-day period, then the Member and Buyer and Seller shall negotiate in good faith will use commercially reasonable efforts to resolve any such disagreement (disputes, but if a final resolution is not obtained with 30 days after the Member has submitted the Earnout Objection, any remaining matters which are in dispute will be resolved by the Accounting Expert in the same matter as to which Seller has not disagreed shall be deemed agreed to by, and be final, conclusive and binding on, the Parties). If Buyer and Seller, notwithstanding such good faith effort, fail to resolve such disagreement within thirty (30) days after Seller notifies Buyer of its disagreement, then either Party may submit the dispute for final and binding resolution to a nationally recognized certified public accounting firm with expertise set forth in the mortgage lending industry which has not previously been engaged by such Party or its Affiliates for a period of two (2) years prior to such firm’s engagement hereunder to resolve such disagreement (the “Accounting Arbitrator”)Section 1.5. The Accounting Arbitrator shall be selected by mutual agreement of Buyer costs and Seller. The determination expenses of the Accounting Arbitrator shall be final, conclusive and binding on Expert in determining the Parties absent manifest arithmetic error. The fees of the Accounting Arbitrator EBITDA shall be borne by Xxxxx, on the Party that does one hand, and the Member, on the other hand, based upon the percentage which the portion of the contested amount not prevail in the arbitration, as determined by the Accounting Arbitrator based on which Party’s position with respect awarded to each party bears to the amount contested elements of the disputed Earnout Statement, in the aggregate, was closest numerically to the Accounting Arbitrator’s position, in the aggregateby such party. (iii) During Within five (5) Business Days after the thirty (30) days following delivery calculation of each EBITDA in respect of an Earnout Statement Measurement Period becomes final and any subsequent period during which binding in accordance with this Section 1.6(c), Buyer shall deliver the Parties are negotiating in good faith to resolve disagreements or the Accounting Arbitrator is reviewing the dispute, Seller and its Representatives shall be permitted, upon reasonable advance notice and subject to Earnout Funds for such reasonable conditions as Buyer may impose, to review Buyer’s working papers and the working papers of Buyer’s independent accountantsEarnout Measurement Period, if any, relating calculated in accordance with this Section 1.6, by wire transfer to the preparation of such Earnout Statement and the calculation of the Earnout Amount therein, as well as the relevant books and records of Buyer; provided that the independent accountants of Buyer shall not be obligated to make any working papers available to Seller account or its Representative unless and until Seller and/or its Representative has signed a confidentiality and hold harmless agreement relating to such access to working papers accounts designated in form and substance acceptable to such independent accountantswriting by Member.