Common use of Payment of Earnout Consideration Clause in Contracts

Payment of Earnout Consideration. On the last day of each month that a Monthly Earnout is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten (10) days after the end of each calendar month in which the Purchaser must pay the Seller the Monthly Earnout (the “Earnout Period”), the Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, that is the difference of (i) the Monthly Earnout Amount less (ii) the Monthly Base Amount (the “Earnout Gross Up Amount”), together with reasonably detailed data supporting such calculation (the “Earnout Notice”). Not later than fifteen (15) days after receipt of the Earnout Notice (the “Earnout Review Period”), the Seller may deliver a dispute notice to the Purchaser (the “Dispute Notice”), notifying the Purchaser of the Seller’s proposed adjustments to, or disputes with, the Purchaser’s calculations. If the Seller does not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within thirty (30) days after the end of each Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a dispute, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Earnout Gross Up Amount that is not in dispute and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase of the Dispute Notice, then such agreed upon amount shall be the Earnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, the parties shall jointly select and engage an independent accounting firm (other than the Purchaser’s or the Seller’s accounting firm) (the “Arbiter”) to resolve any remaining disputes regarding the Earnout Gross Up Amount. If the parties cannot agree on the selection of an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than twenty (20) calendar days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Purchaser and the Seller, each containing a computation of Earnout Gross Up Amount and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the disputes and the resulting computation of the Earnout Gross Up Amount. Such written report shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in the Company’s corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.3 and (y) may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Arbiter shall be jointly paid by the Purchaser and the Seller.

Payment of Earnout Consideration. On In the last day of each month that a Monthly event any Earnout Consideration is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten one hundred and twenty (10120) days after following the end of each calendar month in which the Purchaser must pay the Seller the Monthly Earnout Period (the “Earnout Period”), the Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, provided that is the difference of (i) the Monthly there is no dispute with respect to Earnout Amount less Consideration and (ii) there is no claim for indemnification made by American Healthways in excess of the Monthly Base Amount (amount remaining in Escrow which has not been paid by the “Earnout Gross Up Amount”Principal Stockholders pursuant to Article 10 of the Merger Agreement), together with reasonably detailed data supporting American Healthways shall pay such calculation (Earnout Consideration to a paying agent for the “Earnout Notice”). Not later than fifteen (15) days after receipt Former Stockholders designated by the Stockholder Representative, by wire transfer of immediately available funds if American Healthways elects to pay any portion of the Earnout Notice Consideration in cash, and/or by delivery of shares of common stock, par value $.001 per share, of American Healthways (the “"Common Stock") if American Healthways elects to pay any portion of the Earnout Review Period”)Consideration in Common Stock, provided that in the Seller event American Healthways elects to pay in portion of the Earnout Consideration in Common Stock, it will only be obligated to pay those Former Stockholders who, at the time the Earnout Consideration is payable, qualify as an "accredited investor" as defined in Rule 501(a) of the Securities Act, as determined by American Healthways in its sole discretion. Such Common Stock delivered to the Stockholder Representative shall be registered for resale at the time the Earnout Consideration is due and payable or American Healthways may deliver a dispute notice unregistered shares, provided that American Healthways agrees to the Purchaser file an S-3 registration statement (provided that if American Healthways is not then eligible to register for resale such shares on Form S-3, such registration shall be on another appropriate form determined by American Healthways) (the “Dispute Notice”), notifying "Registration Statement") with the Purchaser of the Seller’s proposed adjustments to, or disputes with, the Purchaser’s calculations. If the Seller does Securities and Exchange Commission not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within later than thirty (30) days after the date on which the Earn-Out Consideration is payable in accordance with the terms of the Earn-Out Agreement, which Registration Statement shall cover the resale from time to time of the shares. American Healthways will use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof and will use its commercially reasonable efforts to maintain the effectiveness of such Registration Statement until the earlier of (i) the date on which the shares of Common Stock issued to the Former Stockholders as Earnout Consideration included in the Registration Statement have been sold or (ii) the date on which the shares of Common Stock issued to the Former Stockholders as Earnout Consideration may be sold under Rule 144(k) of the Securities Act. Anything to the contrary herein notwithstanding, American Healthways may postpone for a reasonable period of time (not to exceed one period of up to ninety (90) days in any twelve (12) month period) the resale of shares pursuant to the Registration Statement if American Healthways determines in the good faith judgment of its board of directors that the resale of shares pursuant to the Registration Statement (a) could reasonably be expected to have an adverse effect on any plan or proposal by American Healthways or any of its subsidiaries with respect to any financing, acquisition, recapitalization or reorganization which is material to American Healthways or other transaction which is material to American Healthways or (b) could require the disclosure of material non-public information, the disclosure of which could reasonably be expected to be adverse to the best interests of American Healthways and its stockholders. The amount of Common Stock to be delivered shall be equal to the quotient of (x) divided by (y), where (x) is the product of (A) the total Earnout Consideration payable and (B) the percentage of Earnout Consideration that American Healthways elects to pay in Common Stock, and where (y) is the fair market value of Common Stock, which shall equal the average of the closing price of the Common Stock on the NASDAQ Stock Market over the ten (10) trading day period ending two (2) trading days prior to the end of each the Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a disputedispute with respect to such Earnout Consideration, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Earnout Gross Up Amount that is amount not in dispute shall be paid as provided above and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase payment of the Dispute Notice, then such agreed upon amount portion in dispute shall be the Earnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, the parties shall jointly select and engage an independent accounting firm (other than the Purchaser’s or the Seller’s accounting firm) (the “Arbiter”) to resolve any remaining disputes regarding the Earnout Gross Up Amount. If the parties cannot agree on the selection of an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than twenty (20) calendar days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Purchaser and the Seller, each containing a computation of Earnout Gross Up Amount and not by independent review, only those issues in dispute and shall render a written report as to the deferred until resolution of the disputes and the resulting computation of the Earnout Gross Up Amount. Such written report shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in the Company’s corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.3 and (y) may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Arbiter shall be jointly paid by the Purchaser and the Sellerdispute.

Payment of Earnout Consideration. On the last day of each month that a Monthly Earnout is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten (10) days after the end of each calendar month in which the Purchaser must pay the Seller the Monthly Earnout (the “Earnout Period”), the Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, that is the difference of (i) the Monthly Earnout Amount less (ii) the Monthly Base Amount (the “Earnout Gross Up Amount”), together with reasonably detailed data supporting such calculation (the “Earnout Notice”). The Purchaser shall give the Seller and its advisors timely access to all books and records reasonably required to verify such calculations. Not later than fifteen (15) days after receipt of the Earnout Notice (the “Earnout Review Period”), the Seller may deliver a dispute notice to the Purchaser (the “Dispute Notice”), notifying the Purchaser of the Seller’s proposed adjustments to, or disputes with, the Purchaser’s calculations. If the Seller does not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within thirty (30) days after the end of each Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a dispute, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Earnout Gross Up Amount that is not in dispute and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase of the Dispute Notice, then such agreed upon amount shall be the Earnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, the parties shall jointly select and engage an independent accounting firm (other than the Purchaser’s or the Seller’s accounting firm) (the “Arbiter”) to resolve any remaining disputes regarding the Earnout Gross Up Amount. If the parties cannot agree on the selection of an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than twenty (20) calendar days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Purchaser and the Seller, each containing a computation of Earnout Gross Up Amount and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the disputes and the resulting computation of the Earnout Gross Up Amount. Such written report shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in the Company’s corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.3 and (y) may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Arbiter shall be jointly paid by the Purchaser and the Seller.

Payment of Earnout Consideration. On the last day of each month that a Monthly Earnout is payable, the Purchaser shall pay to the Seller the Monthly Base Amount on or before the last day of each such month. Not later than ten (10) days after the end of each calendar month in which the Purchaser must pay the Seller the Monthly Earnout (the “"Earnout Period”"), the Purchaser shall provide to the Seller a written notice containing its calculation of the amount, if positive, that is the difference of (i) the Monthly Earnout Amount less (ii) the Monthly Base Amount (the “"Earnout Gross Up Amount”"), together with reasonably detailed data supporting such calculation (the “"Earnout Notice”"). The Purchaser shall give the Seller and its advisors timely access to all books and records reasonably required to verify such calculations. Not later than fifteen (15) days after receipt of the Earnout Notice (the “"Earnout Review Period”"), the Seller may deliver a dispute notice to the Purchaser (the “"Dispute Notice”"), notifying the Purchaser of the Seller’s 's proposed adjustments to, or disputes with, the Purchaser’s 's calculations. If the Seller does not deliver a Dispute Notice during the Earnout Review Period, the Purchaser shall, within thirty (30) days after the end of each Earnout Period, pay the Seller the Earnout Gross Up Amount indicated in the Earnout Notice. If there is a dispute, the Purchaser shall, within thirty (30) days after the end of each Earnout Period pay the Seller the portion of the Earnout Gross Up Amount that is not in dispute and the parties shall in good faith attempt to resolve any disputes. If the parties can resolve such dispute within thirty (30) days after the receipt by the Purchase of the Dispute Notice, then such agreed upon amount shall be the Earnout Gross Up Amount and the Purchaser shall pay Seller any remaining Earnout Gross Up Amount then due and payable. If the parties cannot reach agreement in resolving any dispute within such thirty (30) day time period after the Dispute Notice is given by the Seller to the Purchaser, the parties shall jointly select and engage an independent accounting firm (other than the Purchaser’s 's or the Seller’s 's accounting firm) (the “"Arbiter”") to resolve any remaining disputes regarding the Earnout Gross Up Amount. If the parties cannot agree on the selection of an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than twenty (20) calendar days after acceptance of its appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Purchaser and the Seller, each containing a computation of Earnout Gross Up Amount and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the disputes and the resulting computation of the Earnout Gross Up Amount. Such written report shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in the Company’s 's corporate offices. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 2.3 and (y) may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs and expenses of the Arbiter shall be jointly paid by the Purchaser and the Seller.. Attachment A Excerpts from Documents Related to Sale of GeneWize